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  4. Body Corporate for Aleutian at Seaforth CTS 27405 v Alexander Management Pty Ltd - [2010] QDC 342

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Body Corporate for Aleutian at Seaforth CTS 27405 v Alexander Management Pty Ltd[2010] QDC 342

Body Corporate for Aleutian at Seaforth CTS 27405 v Alexander Management Pty Ltd[2010] QDC 342

DISTRICT COURT OF QUEENSLAND

CITATION:

Body Corporate for Aleutian at Seaforth CTS 27405 & Ors v Alexander Management Pty Ltd & Ors [2010] QDC 342

PARTIES:

Body Corporate for Aleutian at Seaforth CTS 27405

(First Applicant)

and

Body Corporate for Newport at Seaforth CTS 30880

(Second Applicant)

and

Body Corporate for Lagoon at Seaforth CTS 31929

(Third Applicant)

and

Body Corporate for Cascade Apartments at Seaforth CTS 33871

(Fourth Applicant)

and

Body Corporate for Windsor Shores at Seaforth CTS 33986

(Fifth Applicant)

v

Alexander Management Pty Ltd & Ors

(Respondents)

and

F. J Gibbons

(220th respondent)

FILE NO/S:

No. D304 of  2008

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

27 August 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

7 June  2010

JUDGE:

Robertson DCJ

ORDER:

  1. Pursuant to s 85 of the Body Corporate and Community Management Act 1997 each of the following community title schemes namely:
  1. (a)
    Community Title Scheme 27405;
  1. (b)
    Community Title Scheme 30880;
  1. (c)
    Community Title Scheme 31929;
  1. (d)
    Community Title Scheme 33871; and
  1. (e)
    Community Title Scheme 33986

be amalgamated as one community title scheme.

  1. The Community Management statement for the amalgamated scheme reflect exhibit “MAVE6” to the affidavit of Mark Albert Vincent Elmer sworn on the 25 November 2008 and filed herein, subject of the following matters, namely:
  1. (a)
    the contribution scheme schedule in exhibit MAVE6 be removed and be replaced by the schedule to exhibit CB1 to the affidavit of Craig Brennan sworn on the 10 March 2010 and filed herein;
  1. (b)
    the by-laws in exhibit MAVE6 be amended:
  1. (i)
    by inserting a paragraph 27(e) (and renumbering the by-laws as appropriate) to read as follows: Lots 101 to 111 on SP 153566 (the “commercial lots”) will only be used for lawful commercial purposes and during lawful business hours and the commercial lots shall not be used for the purposes of any of them referred to in the sub-clause (b) of the by-law. While lot 110 owned by the caretaker/builder manager of related Body Corporate (as defined in the Corporations Act 2001), lot 110 may be used for the same purpose as referred to in sub-clause (b) of this by-law.
  1. (ii)
    To incorporate those words set out in exhibit A in the proceedings for identification, namely:

The Body Corporate either:

  1. (a)
    reimburse fully and/or indemnify Alexander Management Pty Ltd and/or Vandan Pty Ltd (including their successors in title, assigns or purchaser) for any Body Corporate levies, fees or charges claimed against those lot owners in which those lot owners were previously able to recover from the tenants of lots 101, 105 to 106 and 107 to 109 on SP153586 when those lots were part of the scheme for the Body Corporate for Newport at Seaforth CTS 30880 and lot 101 on SP120561 when that lot was part of the scheme for the Body Corporate of Aleutian at Seaforth CTS 27405; and
  1. (b)
    in the event that during the currency of any lease presently held by Alexander Management Pty Ltd and/or Vandan Pty Ltd within existing tenant, the lease is varied or altered in any way to provide for the payment by the tenant to Alexander Management Pty Ltd and/or Vandan Pty Ltd as landlord any of the Body Corporate’s levies, fees and charges payable to the amalgamated Body Corporate, then the Body Corporate will pay Alexander Management Pty Ltd’s and/or Vandan Pty Ltd’s legal costs associated with varying the  lease.
  1. The liabilities of the applicant Body Corporates therein become, on amalgamation, the liabilities of the new Body Corporate.
  2. The amalgamation be recorded pursuant to ss 115W and 115X of the Land Title Act 1994.
  3. Mark Albert Vincent Elmer is authorised:
  1. (a)
    for the purposes of s 115W(2)(b) of the Land Title Act 1994, the third applicant, by Mark Albert Vincent Elmer, to lodge the request to record the amalgamation;
  1. (b)
    for the purposes of s 53 of the Body Corporate and Community Management Act 1997, to sign the first community management statement;
  1. (c)
    for the purposes of s 60 of the Body Corporate and Community Management Act 1997, seeks such community management statement notation as may be required;
  1. (d)
    to sign the community management statement on behalf of the original owner and/or Body Corporate, and otherwise provide any consent required by s 62 of the Body Corporate and Community Management Act 1997;
  1. (e)
    to act as secretary of the new Body Corporate for the purposes of calling nominations for committee members as anticipated by s 17(2) of the accommodation module as soon as amalgamation takes effect.
  1. The applicants to pay Alexander and Vandan and Mr Gibbons’ costs of and incidental to their applications before Judge Dodds, reserved by him on the 27 February 2009 to be assessed on the standard basis or as agreed.
  2. The applicants pay 70 per cent of Alexander and Vandan’s costs of and incidental to the application to amalgamate and be assessed on the standard basis or as agreed.

CATCHWORDS:

BODIES CORPORATE – application by five bodies corporate to amalgamate – whether proposed contribution schedule complied with law – whether existing rights of commercial lot owners had been preserved – whether proposed amalgamation is just and equitable.

Legislation

Body Corporate and Community Management Act 1997 (Qld)

Cases cited

Fischer & Ors v Body Corporate for the Centrepoint Community Title Scheme 7779 (2004) QCA 214

COUNSEL:

Mr. D. Atkinson (for the applicants)

Mr. C. Carrigan (for the respondents)

Mr. F J Gibbons (appearing on behalf of himself)

SOLICITORS:

McColm Matsinger Lawyers (for the applicants)

Garland Waddington Solicitors & Notaries  (for the respondent Alexander Management Pty Ltd)

MacGregor O’Reilly Solicitors (for the respondent Vandan Pty Ltd)

Munro Thompson Lawyers (previously for the respondent Mr. F.J Gibbons)

  1. [2]
    The background to these proceedings is fully set out in the reasons for judgment published by his Honour Judge Dodds on 10 March 2009 and reported as Body Corporate for Aleutian and Seaforth & Ors [2009] QDC 052. It is unnecessary for me to repeat the history of these protracted proceedings in these reasons.
  1. [3]
    As his Honour’s reasons reveal, the applicant Body Corporates had failed to comply with the relevant legislation in commencing the proceedings pursuant to s 85(3) of the Body Corporate and Community Management Act 1997 (the Act) to amalgamate the five Body Corporates in the Seaforth complex at Alexandra Headland. The active respondents were then Alexander Management Proprietary Limited (the owner of 10 commercial lots in Newport), Vandan Proprietary Limited (the owner of a commercial lot in Aleutian in which it operates a hotel), and Mr Fergus Gibbons (the owner of a residential lot in Windsor Shores). The respondents submitted that due to this failure the application should be struck out. The applicants successfully argued that the matter be adjourned until after the AGM’s of the five Body Corporate applicants expected to be held prior to 31 March 2009 at which time the procedural failures identified in his Honour’s reasons could be rectified.
  1. [4]
    His Honour reserved the costs and made it clear that his order should not be taken to authorise “an indefinite adjournment”. The difficulties identified by His Honour have now been resolved albeit within a much longer time frame than he had contemplated.
  1. [5]
    With the application filed on 5 December 2008 the applicants filed and relied upon affidavits of the chairman of the Body Corporate for Lagoon, Mr Mark Elmer and an affidavit of Mr Timothy Sheehan, who was the managing director of Stewart Silver King & Burns a recognised expert in the structuring and establishment of Bodies Corporate. Annexed to Mr Elmer’s affidavit and exhibited as NAVE 6 was a proposed new community management statement for the amalgamated Bodies Corporate including the proposed contribution schedule and interest schedule. At the hearing before Judge Dodds on 27 February 2009 Mr Carrigan on behalf of Alexander and Vandan, filed by leave an affidavit of Kaylene Arcoll a quantity surveyor with Leary & Partners Pty Ltd Quantity Surveyors who was also an expert in providing advice and services to the body corporate industry. She was specifically instructed to provide advice on the current contribution lot entitlement calculations for lot owners of the various applicants, and the proposed future calculations as a result of amalgamation. It is clear from the evidence of Mr Elmer and Mr Sheehan that essentially the contribution lot entitlement as proposed originally would have essentially achieved parity on amalgamation with the existing contribution lot entitlements for the various lot owners. In her preliminary report, Ms Arcoll pointed out that the methodology apparently adopted by the applicants to calculate the contribution schedule of lot entitlements upon amalgamation did not appear to comply with either the legislation (part 5 of the Act), or the principles set out in Fischer & Ors v Body Corporate for Centrepoint Community Title Schemes 7779 [2004] QCA 214.
  1. [6]
    On 6 November 2009 the matter was mentioned before me and was adjourned until 18 December 2009 and costs were reserved. I made it clear to Mr Atkinson, who has appeared throughout for the applicants, that the lengthy delay was contrary to the express intentions set out in His Honour’s reasons and the matter needed to go to a hearing or his client’s application would be dismissed. At that time the applicants were still relying upon the contribution schedule annexed to Mr Elmer’s affidavit filed with the originating application, however I was then informed that Mr Brennan from QBS Strata Management had been retained and had given a further expert report and survey of the contribution schedule applicable to the proposed amalgamation, and that the matter would be ready for trial in March. I set the matter down for trial for two days commencing on 22 March 2010. Although Mr Brennan’s affidavit was not filed until 11 March 2010 the report annexed to it is dated December 2009.
  1. [7]
    On 18 March 2010 Mr Carrigan on behalf of Alexander applied to vacate the trial dates. It is common ground that all the applicant Body Corporates in January and February of 2010 at extraordinary general meetings had approved by special resolution the making of an alternative application to amalgamate based on what was referred to as a contribution schedule calculated in accordance with the “Centrepoint” principle. All those owners had previously been supplied with Mr Brennan’s report and an earlier report obtained by the Bodies Corporate from Paul Steer of KPMG.
  1. [8]
    To quote from Mr Carrigan’s written outline in support of his client’s application to vacate the trial dates made on 18 March 2010:

“3.8 On 24 February 2010 the Body Corporate’s solicitors advised Alexander Management’s solicitors that:

  1. (a)
    It had not served an amended application but gave notice of the terms of an amendment to be sought at the commencement of the trial;
  1. (b)
    The Body Corporate would seek an amalgamation with a contribution schedule in accordance with the calculations of Mr Elmer or in the alternative as contained in the QBS report;
  1. (c)
    Enclosed by way of service a list of documents;
  1. (d)
    Enclosed sinking fund forecast for the existing Body Corporate together with the CMS’s (community management statement) for the existing Body Corporates.

3.9 The Body Corporate’s expert, Kaylene Arcoll advised that the documents provided by the Body Corporate’s solicitors did not respond to those documents she had advised which she required as a minimum to review the report by QBS. The documents were deficient at least in the following respects:

  1. (a)
    No survey plans of each of the schemes;
  1. (b)
    No CMS to be used in the QBS report.

3.10 On 9 March 2010 Alexander Management’s expert, Ms Kaylene Arcoll advised that:

  1. (a)
    She was asked to prepare a report before 22 March 2010;
  1. (b)
    Because of the substantial size and complexity of the amalgamation scheme it would take six weeks to prepare a response to QBS’s report;
  1. (c)
    It was likely that once she commenced that examination it was likely that she would identify additional documents required of her response to the QBS report”.
  1. [9]
    Judge Dodds granted the application to vacate the trial dates and made a further directions order and the matter was set down for four days (Alexander’s estimate) in the June sitting.
  1. [10]
    By the time of the hearing, the issues in dispute between the applicants and Alexander and Vandan had narrowed considerably. No further affidavit of Ms Arcoll was filed and Mr Carrigan acknowledged that Mr Brennan’s contribution lot schedule was properly formulated in accordance with the applicable law.
  1. [11]
    Mr Gibbons continued with his application to oppose the amalgamation essentially on the same grounds as those he raised with Judge Dodds on 18 March 2010 and I will deal with his arguments at the conclusion of these reasons.

The Issues between the Applicants and Alexander

  1. (a)
    Commercial Use
  1. [12]
    The first issue concerns the understandable desire by Alexander and Vandan to retain their existing commercial use rights under any amalgamated CTS. Mr Carrigan conceded that by-law 27(c) in Schedule C of the CMS annexed to Mr Elmer’s affidavit properly continued his clients existing use rights under the CMS of Aleutian which is exhibit 1 in these proceedings. By-law 27(c) in the draft CMS for the proposed amalgamated Body Corporates replicates by-law 28(c) in the Aleutian CMS.
  1. [13]
    Unfortunately the existing use rights provided to Alexander in by-law 28(c) in the CMS for Newport, have not been transported into the proposed by-laws in the CMS annexed to Mr Elmore’s affidavit, and I agree that its position would at best be uncertain because of the wording in proposed by-law 27(e), and despite the clear acknowledgment in paragraph 3 of Schedule A that its lots are used for commercial purposes. Mr McKay (director of Alexander) seemed to think that this was deliberate but having regard to all the evidence I am satisfied that this came about due to oversight. In any event the applicants concede that by-law 27 should be amended to protect the present use of those lots and the parties have agreed on the following amendment:

“27(e) Lots 101 to 111 on SP 153566 (the “Commercial Lots”) will only be used for lawful commercial purposes and during lawful business hours and the commercial lots shall not be used for the purposes of any of them referred to in sub-clause (b) of this by-law. While lot 110 is owned by the caretaker/building manager or related Body Corporate (as defined in the Corporations Act 2001), lot 110 may be used for the same purpose as referred to in sub-clause (b) of this by-law”.

This will involve a reallocation of paragraphs in the by-laws in the CMS.

  1. (b)
    Loss of Income from Tenants

There is no issue here for Vandan as its tenant has agreed to a new lease in which the tenant agrees to pay the proposed new body corporate levies as part of Vandan’s outgoings as landlord and owner of lot 101 on SP 120561.

  1. [14]
    The situation for Alexander is more complicated. Six of its lots are covered by existing leases which have varying periods to run and two of which have options to renew. The relevant leases are annexed to Mr McKay’s affidavit filed on 2 June 2010. I am satisfied that on a proper construction of the relevant definitions in each lease, the obligation to pay outgoings imposed on the tenant in clause 3.1 would, upon amalgamation and formation of a new CTS, no longer include an obligation to pay levies payable by Alexander to the Body Corporate. This would lead to a loss of income and a diminution in the market value of lots in accordance with the report of Mr Gould a certified valuer dated 22 May 2010 annexed to his affidavit filed 31 May 2010.
  1. [15]
    The touchstone for amalgamation of community title schemes on application to this court pursuant to s 85(3) is that it be “just an equitable” or “fair and equitable” (per Chesterman J (as his Honour then was) in Fischer). These forecast losses in income and market value in Mr Gould’s report would certainly be unfair and inequitable to Alexander whichever of the alternative CMS’s is adopted (i.e. Mr Elmer’s or Mr Brennan’s). Mr Atkinson on behalf of the applicants concedes that this is so but argues for a different form of amendment to the by-laws than that proposed by Mr Carrigan in exhibit A for identification.
  1. [16]
    He criticises Mr McKay for not approaching the tenants to see if they will agree to a new lease which provides for the obligation to pay body corporate outgoings, and he was critical of (presumably) Mr McKay’s lawyers for not drafting the leases in the way in which the Vandan lease had been drafted, such that the landlords are protected even if the CTS of which the lease premises is a part, changes. In my opinion these criticisms are not to the point. As Mr Elmer fairly conceded in cross examination, these significant financial implications for Alexander would only occur as a result of amalgamation, and it would be fair and reasonable to regard the non-recoverable levies issue as a problem created by amalgamation and therefore a genuine cost to be borne by the new Body Corporate if indeed there is a loss to Alexander in this regard. It follows that I favour the words proposed in exhibit A tendered by Mr Carrigan and these should form part of the ultimate court order.
  1. (c)
    Parity or Centrepoint
  1. [17]
    Mr Atkinson acknowledges (appropriately in my view) that Mr Brennan’s contribution schedule prepared on the basis of the principles approved in the Centrepoint decision, constitutes the correct approach to be taken as a matter of law but nevertheless posits this as an alternative to the parity approach undertaken by Mr Elmer in the contribution schedule annexed to his affidavit which was prepared by Mr Sheehan. In my view the contribution schedule annexed to Mr Brennan’s affidavit should form part of the new Body Corporate CMS.
  1. (d)
    The Interest Schedule
  1. [18]
    Section 48(7) of the Act provides:

“For the interest schedule, the respective lot entitlements should reflect the respective market values of the lots included in the scheme when the specialist adjudicator or the CTT makes the order, except to the extent to which it is just an equitable in the circumstances for the individual lot entitlements to reflect other than the respective market values of the lots”.

Mr Carrigan essentially argues that the interest schedule annexed to Mr Elmer’s affidavit does not comply with the requirement that it should reflect the respective market values of the lots. I have some doubts that the legislature intended that in applications of this kind pursuant to s 85(3) of the Act, where the only issue for the court is whether it is just and equitable to amalgamate the schemes, all the lots in the amalgamated proposed schemes should be valued by registered valuer. In this case, the costs and complexities of undertaking such a task are obvious. There are 242 lots of varying size and aspect and there are commercial lots. Mr Sheehan, who prepared the interest schedule, frankly conceded that he relied on relative values and did not look at current market values of individual lots. It is unnecessary in my view to decide if Mr Carrigan’s construction point is correct. Certainly, as far as both experienced counsel could discover, no court has previously considered the point. That is probably understandable because the interest schedule determines a lot owner’s share of common property, and a lot owner’s interest in the scheme if it was ever wound up and the unimproved value of a lot for the purpose of government rates and taxes. Section 48 specifically deals with a lot owner’s right to apply (to a specialist adjudicator or presumably now QCAT) for the adjustment of a lot entitlements schedule (my emphasis), and it is not linked in any way to applications of this kind.

  1. [19]
    Even if Mr Carrigan was correct and s 48(7) did apply to applications of this kind, the sub-section does provide for the “just and equitable” exception to the strict requirements that Mr Carrigan submits apply here to the applicants. He may be correct in his objection to the evidence of Mr Burns and Mr Walker on the basis that they are not experts in valuing real estate (as Mr Gould is), however their evidence in my view bears upon the just and equitable exception in s 48(7) and I have considered it in that context. It would not be just or equitable to require the applicants here to undertake current valuations of each lot, the cost of which would be substantial and which ultimately would be borne by the lot owners. Not one lot owner (not even Mr Gibbons or Mr McKay) supported such an approach.
  1. [20]
    This deals with the arguments advanced by Mr Carrigan on behalf of Alexander and Vandan.
  1. [21]
    Mr Gibbons maintained his opposition to the amalgamation on grounds that were not entirely clear but appeared not to relate to the evidence but rather to issues of dispute that he had over notices of various meetings and conduct of various individuals in the extraordinarily convoluted process that has attended the amalgamation proposal. Of course, he like Alexander and Vandan found that the applicants (as of December 2009) were presenting a different case in relation to the contribution schedule or more correctly a case involving alternatives one of which was not actively pursued by them at the final hearing.
  1. [22]
    Subject to the agreed resolution of the issues between the applicants and Alexander and Vandan referred to above, it is suffice for me to state that I am satisfied for the reasons summarised in paragraph 14 of Mr Atkinson’s helpful written submission that it is just and equitable to make an order for the amalgamation of the five schemes.
  1. [23]
    I will make orders in terms of these reasons at 2.30 pm on Friday, 27 August. I will direct, that a copy of my reasons be provided to the active parties strictly on a confidential basis for the purpose of obtaining legal advice and I invite submissions on the form of orders and costs.

Costs

  1. [24]
    The history of these protracted proceedings in set out both in my reasons and more extensively in the earlier reasons of His Honour Judge Dodds. In relation to the proceedings before His Honour, all active parties were represented by counsel and solicitors.
  1. [25]
    His Honour had before him the original application to amalgamate, an application by Mr Gibbons, the 220th co-respondent to adjourn, and applications by Alexander and Vandan seeking declarations that the original application had been commenced without authority as required by s 312 of the Act, and was beyond power of each of the applicants and that the application be struck out or dismissed. Mr Gibbons’ counsel also supported the making of those declarations and orders.
  1. [26]
    Ultimately, His Honour decided that the respondents were correct in their argument that the proceedings commenced by the applicant Body Corporates had not been authorised by special resolution as required by s 312 of the Act. He also found that the applicants had failed to comply with other technical requirements of the Act and Regulations.
  1. [27]
    Ultimately, His Honour favoured the applicants’ submission that its application be adjourned to enable the defects to be rectified for the reasons set out in paragraph 48 of His Honour’s reasons and His Honour reserved costs.
  1. [28]
    In my view, the three active respondents at that time, Alexander, Vandan and Mr Gibbons, are entitled to their costs thrown away as a result of that adjournment. Mr Gibbons has always opposed amalgamation. Ultimately, on the 11 May 2009 he filed a notice that he was acting for himself.
  1. [29]
    Judge Dodds did not deal with the Centrepoint issue. In reality, as my reasons expose, the applicants would have failed in their application to amalgamate based on the parity principle approach undertaken by Mr Elmer. They had been asked on a number of occasions by the solicitors representing Alexander to identify the basis of the methodology relied upon in the preparation of the proposed amalgamated CMS prior to the commencement of the proceedings and the solicitors had not done so in direct terms.
  1. [30]
    I infer that it was not until the filing of the affidavit of Ms Arcoll on the 27Feruary 2009 that the applicants considered the application of the Centrepoint principle which ultimately led to the involvement of Mr Brennan, who prepared a contribution schedule which all parties now accept complied with the law, both as set out in the Act and in the Centrepoint decision.
  1. [31]
    It was not until the 24 February 2010- I infer once all special resolutions had been passed at the various applicants’ EGMs to approve an alternative approach based on Mr Brennan’s report, that the applicants’ solicitors gave notice to Alexander’s solicitors that they intended to apply to amend their application accordingly. By then the matter was set for trial and Alexander then applied successfully to vacate the trial dates in March to enable Ms Arcoll to have sufficient time to examine and respond to Mr Brennan’s report. This came about for the simple reason that the applicants were not prepared to accept entirely the application of the Centrepoint principle, and the respondents were then obliged to prepare for a possible evidentiary contest between the opinions of Mr Brennan, the anticipated opinion of Ms Arcoll on the one hand and Mr Elmer on the other.
  1. [32]
    As my reasons disclose, this issue had largely resolved by the time of the hearing and the respondents were content to proceed on the basis of the Brennan report. In truth, Mr Atkinson, on behalf of the applicants, also accepted that the Brennan approach to the contribution schedule was appropriate but he was still bound, presumably by the special resolutions, to propose the parity approach as an alternative.
  1. [33]
    Mr Carrigan argues on behalf of Alexander and Vandan that his clients should have an award for indemnity costs based on the non-acceptance of offers to settle which are set out in letters from his client’s solicitors, respectively dated the 5 August 2008 and the 1 February 2010. The letters are attached to affidavits filed by the solicitors in the proceedings and are referred to in Mr Carrigan’s outline. Neither letter complies with rules 353(3) or 355(1) and Mr Carrigan does not suggest they do. His application for indemnity costs is based on ordinary common law principles.
  1. [34]
    Importantly, I think Mr Atkinson is right when he says that the applicants were in reality, not in a position to accept the offer in the absence of consent from Mr Gibbons who has always shown himself to be implacably opposed to amalgamation in any event.
  1. [35]
    The other reason that an indemnity costs order is not appropriate is that Mr Carrigan advanced an argument at the hearing about the interest schedule, which took some time and involved some additional cross-examination which, ultimately, I have not accepted. He obviously advanced that on instructions from both of his clients.
  1. [36]
    If accepted, that argument would have led either to the failure of the application or another long adjournment to enable the lots to be valued and the interest schedule to be recalculated. Mr Atkinson refers to r 681, which contains the conventional approach, that costs should follow the event, but he does not suggest in the circumstances here that his clients should have their costs because they have succeeded in the primary relief sought. Rather, his ultimate submission is that there should be no order as to costs.
  1. [37]
    It is true, as he says, that the commercial use and lease issues were not strenuously pursued by him at trial but they were pursued in fact, and Mr McKay was cross-examined about them. All parties have saved costs by agreeing to narrow the issues such that the four day estimate was reduced to two days and ultimately, the hearing was completed in one day.
  1. [38]
    After considering all the submissions including Mr Gibbons’ letter to the Court dated 5 July 2010, in which he explained that he would not be able to be present at this time but made a submission as to costs, the orders that I make are as follows;
  1. Pursuant to s 85 of the Body Corporate and Community Management Act 1997 each of the following community title schemes namely:
  1. (a)
    Community Title Scheme 27405;
  1. (b)
    Community Title Scheme 30880;
  1. (c)
    Community Title Scheme 31929;
  1. (d)
    Community Title Scheme 33871; and
  1. (e)
    Community Title Scheme 33986

be amalgamated as one community title scheme.

  1. The Community Management statement for the amalgamated scheme reflect exhibit “MAVE6” to the affidavit of Mark Albert Vincent Elmer sworn on the 25 November 2008 and filed herein, subject of the following matters, namely:
  1. (a)
    the contribution scheme schedule in exhibit MAVE6 be removed and be replaced by the schedule to exhibit CB1 to the affidavit of Craig Brennan sworn on the 10 March 2010 and filed herein;
  1. (b)
    the by-laws in exhibit MAVE6 be amended:
  1. (i)
    by inserting a paragraph 27(e) (and renumbering the by-laws as appropriate) to read as follows: Lots 101 to 111 on SP 153566 (the “commercial lots”) will only be used for lawful commercial purposes and during lawful business hours and the commercial lots shall not be used for the purposes of any of them referred to in the sub-clause (b) of the by-law. While lot 110 owned by the caretaker/builder manager of related Body Corporate (as defined in the Corporations Act 2001), lot 110 may be used for the same purpose as referred to in sub-clause (b) of this by-law.
  1. (ii)
    To incorporate those words set out in exhibit A in the proceedings for identification, namely:

The Body Corporate either:

  1. (a)
    reimburse fully and/or indemnify Alexander Management Pty Ltd and/or Vandan Pty Ltd (including their successors in title, assigns or purchaser) for any body corporate levies, fees or charges claimed against those lot owners in which those lot owners were previously able to recover from the tenants of lots 101, 105 to 106 and 107 to 109 on SP153586 when those lots were part of the scheme for the Body Corporate for Newport at Seaforth CTS 30880 and lot 101 on SP120561 when that lot was part of the scheme for the Body Corporate of Aleutian at Seaforth CTS 27405; and
  1. (b)
    in the event that during the currency of any lease presently held by Alexander Management Pty Ltd and/or Vandan Pty Ltd within existing tenant, the lease is varied or altered in any way to provide for the payment by the tenant to Alexander Management Pty Ltd and/or Vandan Pty Ltd as landlord any of the Body Corporate’s levies, fees and charges payable to the amalgamated Body Corporate, then the Body Corporate will pay Alexander Management Pty Ltd’s and/or Vandan Pty Ltd’s legal costs associated with varying the  lease.
  1. The liabilities of the applicant Body Corporates therein become, on amalgamation, the liabilities of the new Body Corporate.
  2. The amalgamation be recorded pursuant to ss 115W and 115X of the Land Title Act 1994.
  3. Mark Albert Vincent Elmer is authorised:
  1. (a)
    for the purposes of s 115W(2)(b) of the Land Title Act 1994, the third applicant, by Mark Albert Vincent Elmer, to lodge the request to record the amalgamation;
  1. (b)
    for the purposes of s 53 of the Body Corporate and Community Management Act 1997, to sign the first community management statement;
  1. (c)
    for the purposes of s 60 of the Body Corporate and Community Management Act 1997, seeks such community management statement notation as may be required;
  1. (d)
    to sign the community management statement on behalf of the original owner and/or Body Corporate, and otherwise provide any consent required by s 62 of the Body Corporate and Community Management Act 1997;
  1. (e)
    to act as secretary of the new Body Corporate for the purposes of calling nominations for committee members as anticipated by s 17(2) of the accommodation module as soon as amalgamation takes effect.
  1. The applicants to pay Alexander and Vandan and Mr Gibbons’ costs of and incidental to their applications before Judge Dodds, reserved by him on the 27 February 2009 to be assessed on the standard basis or as agreed.
  2. The applicants pay 70 per cent of Alexander and Vandan’s costs of and incidental to the application to amalgamate and be assessed on the standard basis or as agreed.
Close

Editorial Notes

  • Published Case Name:

    Body Corporate for Aleutian at Seaforth CTS 27405 & Ors v Alexander Management Pty Ltd & Ors

  • Shortened Case Name:

    Body Corporate for Aleutian at Seaforth CTS 27405 v Alexander Management Pty Ltd

  • MNC:

    [2010] QDC 342

  • Court:

    QDC

  • Judge(s):

    Robertson DCJ

  • Date:

    27 Aug 2010

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Body Corporate for Aleutian at Seaforth v The Lot Owners for Each of the Applicant Bodies Corporate [2009] QDC 52
1 citation
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Cite 1 - [2009] QDC 52
Fischer v Body Corporate for Centrepoint Community Title Scheme 7779[2004] 2 Qd R 638; [2004] QCA 214
2 citations
Jump To
Cite 1 - [2004] QCA 214
Cite 2 - [2004] QCA 214

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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