Wheeler and Smith v Body Corporate for Calypso Towers

Wheeler and Smith appealed the decision of an adjudicator who found that the body corporate was required to record a new Community Management Statement (CMS) showing the reallocation of car park C111 and storage area S30 to Lot 105. The appeal was based on two grounds: firstly, that the agreement to reallocate the exclusive use areas was conditional and therefore did not constitute a ‘further allocation’ within the meaning of the Body Corporate and Community Management Act 1997 (Qld); and secondly, that the adjudicator’s decision to require the body corporate to record a new CMS breached section 171 of the Act, which requires the written consent of the relevant lot owner to change an exclusive use by-law.

The court found that the agreement to reallocate the exclusive use areas was not conditional but unconditional, as the co-owner of Lot 73, Mr Evans, had clearly stated his intention for the reallocation agreement to take effect immediately and his consent was not conditional. The court also held that the reallocation agreement took effect once details of the allocation were given to the body corporate, which occurred in this case when the body corporate passed a resolution consenting to the agreement.

The court further found that there was no error of law in the adjudicator’s decision as section 171 was not relevant to the current owners of Lot 73, and the reallocation agreement did not require a change to the exclusive use by-law, only to the details recorded in Schedule E to the CMS. The requirement to obtain the consent of the affected lot owner applied to the lot owners immediately prior to the resolution consenting to the recording of the new CMS, which in this case were the owners of Lot 73 and Lot 105 in 2006.

In conclusion, the court dismissed the appeal and upheld the adjudicator’s decision that the body corporate was required to record a new CMS showing the reallocation of car park C111 and storage area S30 to Lot 105.