Wilson v Body Corporate Riverside Mooloolaba CTS 7283
[2011] QCATA 146
•22 June 2011
| CITATION: | Wilson v Body Corporate Riverside Mooloolaba CTS 7283 [2011] QCATA 146 |
| PARTIES: | Francis Robert Wilson (Appellant) |
| v | |
| Body Corporate Riverside Mooloolaba CTS 7283 (Respondent) |
| APPLICATION NUMBER: | APL341-10 |
| MATTER TYPE: | Appeal |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Kenneth Barlow SC, Member |
| DELIVERED ON: | 22 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Appeal allowed. 2. Set aside the decision of the Adjudicator and order that: (a) Resolution number 2 made by the body corporate at its extraordinary general meeting on 15 July 2010 be set aside; (b) The body corporate reinstate the metal balustrade that has been removed from the rooftops of, and that bounded the exclusive use areas for, each of lots 7, 8, 9 and 10, or install a similar balustrade; and, (c) The costs of removal of the original balustrade and of complying with order 2 be levied by the body corporate on those members of the body corporate who voted in favour of the resolution. |
| CATCHWORDS: | APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – COMMUNITY TITLES SCHEME – where the body corporate for the Riverside Mooloolaba Community Titles Scheme resolved that the balustrades which delineated the exclusive use area from the common property be removed and replaced by alternative delineation with no change to the allocation of exclusive use and common property areas – where Mr Wilson made an application for adjudication seeking to have that resolution overturned – where the Adjudicator dismissed the application – where Mr Wilson seeks to appeal that decision on the basis that the resolution was contrary to a previous order of an Adjudicator and was made in breach of the Act – whether the resolution was valid – whether the appeal should be allowed Body Corporate and Community Management Act1997, ss 54, 59, 62, 276, 288, 298 Riverside Mooloolaba [2007] QBCCMCmr 310 (23 May 2007) |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
PRESIDENT
In this matter the Appeal Tribunal was comprised of Mr Barlow SC, and me. I have had the advantage of reading his Reasons in draft. I agree with them, and the conclusions he reaches, and the orders he proposes.
MR BARLOW SC
Background
This is an appeal from the decision of an Adjudicator made in respect of a dispute between a lot owner and the body corporate. The appellant, Mr Wilson, was the applicant before the Adjudicator.
The Riverside Mooloolaba Community Titles Scheme consists of 10 residential lots and common property. Mr Wilson is the owner of lot 3. Lots 1 to 6 are ground floor units. Lots 7 to 10 are upper floor units.
The community management statement for the scheme provides for the exclusive use of roof top areas by the owners of lots 7, 8, 9 and 10. The exclusive use areas are identified in a sketch plan annexed to the community management statement, which states that the ‘exclusive use areas are bounded by structural elements’.
The ‘structural elements’ which physically denoted the boundaries of the exclusive use areas were metal balustrades, which were installed between about half a metre and one and a half metres from the eastern edge of the roof top of each apartment.
On 15 July 2010, at an extraordinary general meeting the body corporate resolved (by a vote of 8 in favour and 2 against) as follows:
That the metal balustrades which delineate the exclusive use area from the common property area at the eastern boundary on the roof tops of lots 7, 8, 9 & 10 be removed and replaced by alternative delineation with no change to the allocation of exclusive use and common property areas.
The adjudication application
In his application to the Adjudicator, Mr Wilson sought the following orders:
That a purported resolution of an extraordinary general meeting of the body corporate purported to be held on 15 July 2010 is overturned and must be struck out and not acted upon.
That any action taken pursuant to the purported resolution is cancelled and any and all things changed must be restored to the same condition as they were prior to the purported extraordinary general meeting.
Orders that the body corporate and owners must not propose to a committee or general meeting or resolve to take action, or take action which has the effect of circumventing or contravening the requirements of adjudicators’ orders 369‑2007 and 849-2007 which require that the rooftop balustrades must not be removed until the body corporate resolves by resolution without dissent to allocate additional areas of common property on the roof to the owners of lots 7, 8, 9 & 10.
The Adjudicator dismissed Mr Wilson’s application, relevantly finding that:
a)The body corporate had resolved to remove and replace the metal balustrades with an alternative means of delineating the boundary of exclusive use areas from unallocated common property;
b)It was evident that the removal of the metal balustrades would greatly enhance the visual amenity of the rooftop areas; and
c)Nevertheless, that perceived benefit to the ‘rooftop owners’ would not necessarily invalidate the resolution as it did not involve an extension of the exclusive use areas.
The Adjudicator went on to note that the exclusive use areas needed to be accurately identified in the community management statement for the scheme, such as by reference to structural features (as at present) or by marking corners with survey pegs and by delineating, giving distances for, or dimensions of the boundaries.
Submissions in the appeal
An appeal from the decision of an adjudicator may only be brought to this Tribunal on a question of law: s 289(2) of the Body Corporate and Community Management Act1997. Mr Wilson does not expressly identify the question of law upon which his appeal is based. However, it is clear that at least one ground of the appeal is that the resolution was contrary to a previous order of an Adjudicator.
Relevant to this first ground is that, on 23 May 2007, in an earlier dispute between Mr Wilson and the body corporate,[1] an Adjudicator made the following order:
I further order that the white balustrades delineating the exclusive use areas of common property for lots 7, 8, 9 and 10 may not be removed … until the body corporate resolves by resolution without dissent to allocate any additional areas of common property on the roof to the owners of lots 7, 8, 9 and 10.
[1] Riverside Mooloolaba [2007] QBCCMCmr 310.
Otherwise Mr Wilson contends that the resolution was made in breach of the Act, although he does not identify any particular section that has been breached. He contends that the resolution was simply a de facto method of extending the exclusive use areas of each lot to the edge of the rooftops, which was contrary to the proper method of extending such exclusive use areas.
The body corporate submits that Mr Wilson has not identified a question of law for appeal and that otherwise his submissions on the appeal relate to questions of fact. It has also noted that, subsequent to the Adjudicator’s order, it commissioned a licensed surveyor to produce a rooftop survey plan, which it has produced to the tribunal, identifying and delineating the boundaries between the exclusive use areas and the common property on the rooftop. The body corporate submits that both the resolution itself and the survey plan demonstrate its intention to maintain title over the rooftop common property areas.
Discussion
Two things are immediately apparent about the resolution. First, it is inconsistent with, and contrary to, the order of the Adjudicator made on 23 May 2007. Secondly, it is inconsistent with the community management statement, which relevantly provides that the exclusive use areas are identified by the sketch plan and bounded by structural elements. The ‘structural elements’ to which it referred were clearly the balustrades.
As to the first of these features of the resolution, it should be noted that nobody appealed from that order after it was made. While a resolution in breach of an existing order of an Adjudicator may not render the resolution itself invalid, the resolution may be liable to be set aside by an Adjudicator on an application, pursuant to the powers of the Adjudicator under s 276 of the Act. Further, a person who contravenes an order of an Adjudicator commits an offence (s 288). There would therefore be good grounds for an Adjudicator to set aside a resolution that breached an earlier order of an Adjudicator, as this resolution clearly did.
As to the second feature of the resolution, I note the following matters.
Subsection 59(2) of the Act relevantly provides that the community management statement for a community titles scheme is binding on the body corporate and each member of the body corporate. Section 54 of the Act relevantly provides that a community management statement cannot be amended, but a new community management statement for the scheme may be recorded in place of the existing statement if the body corporate consents, under s 62, to the recording of the new management statement.
Section 62 provides that the consent of the body corporate for a new community management statement must be in the form of a resolution without dissent.
The resolution in this case was in breach of both an order of an Adjudicator and the community management statement of the body corporate. Even if that does not of itself render the resolution invalid, it raises good grounds for the resolution to be set aside.
If the body corporate, or any of its members, wish to alter the community management statement then they must comply with the procedures for doing so prescribed by the Act.
On the application below, the Adjudicator did not take into account either of these matters. Notwithstanding that, the Adjudicator noted that the exclusive use areas needed to be accurately identified and that the body corporate proposed to delineate them by alternative means to the existing structural features. But the Adjudicator failed to take into account that an alternative method of delineation could not be used without replacement of the existing community management statement. In that respect, and in failing (notwithstanding Mr Wilson’s submissions) to take into account the fact that the resolution was in breach of an existing Adjudicator’s order, in my opinion the Adjudicator erred in law.
Having regard to the breaches of both the Act and the community management statement by the resolution, in my opinion it ought to be set aside. Furthermore, the Body Corporate ought be ordered to reinstate the balustrade which it has removed and to levy its members, other than the two members who voted against the resolution, for the cost of doing so and for the cost of removing the original balustrade.
I do not consider it necessary to make the third order which Mr Wilson sought before the Adjudicator.
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