Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

Correction of Error in Community Management Statement.

Act, ss 62, 227(2), 276, Schedule 5 Item 2

Burrell v Body Corporate for Boulevard North [2010] QDC 352

Boulevard North [2011] QBCCMCmr 149

Marrakesh [2019] QBCCMCmr 58

Q1 [2021] QBCCMCmr 466

1. I declare that the Body Corporate for Yachting Towers CTS 12238 was not authorised to remove the exclusive use allocations regarding the storage spaces, pool, and rooftop, from the community management statement registered on 24 October 2024 with dealing number 723622085.
2. I order that within 3 months the Body Corporate for Yachting Towers must record a new community management statement that reinstates the relevant exclusive use allocations that were wrongly omitted in the community management statement registered on 24 October 2024 with dealing number 723622085.

• [1] The Applicant is The Body Corporate Yachting Towers. The filing of this Application was authorised by the Committee and seeks the following declaratory order:

That the Body Corporate for Yachting Towers CTS 12238 was not authorised to remove the exclusive use allocations regarding the storage spaces, pool and rooftop from the community management statement registered on 24 October 2024 with dealing number 723622085 and must reinstate the relevant exclusive use allocations by registering a new community management statement.

• [2] Section 228(1)(a) of the Act relevantly states that the purpose of Chapter 6 of the Act is to establish arrangements for resolving, in the context of a community titles scheme, disputes about contraventions of the Act.
• [3] Pursuant to s.227(2) of the Act a dispute will also include an application made by a body corporate for a declaratory order about the operation of the Act, even where there is no respondent to the application.
• [4] Pursuant to s.276 of the Act, an Adjudicator may relevantly make an order that is just and equitable in the circumstances, including a declaratory order, to resolve a dispute in a community titles scheme, about:
  1. a claimed or anticipated contravention of the Act; or
  2. the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.
• [5] The Applicant says it is seeking declaratory orders in respect of a contravention of the Act, which is within the powers of the Adjudicator. Accordingly, the applicant believes that the Commissioner's Office has jurisdiction to determine this dispute.

• [6] Yachting Towers contains 43 lots and is located in Main Beach. It was created under a building format plan of subdivision and is governed by the Standard Module.

This application arises as a result of a historical error in community management statements recorded for the scheme. A historical title search undertaken on 20 June 2025 listed every CMS registered for the Scheme[1] at that time. Numerous Community management statements for the scheme were recorded between the years 2000 and 2024. There have been no community management statements registered between the Previous CMS and the Current CMS.

• [7] Community management statements recorded between 2020 and 2024 are listed below:

• [8] In accordance with the by-laws and Schedule E of the Community Management Statement (CMS), exclusive use allocations have previously been made to lot owners for the purpose of car parking, storage, the pool, and rooftop.

• [9] By-law 19 in the Previous CMS dated 29/11/2023 relevantly states:

(1) Each Owner of a Lot shown in Schedule E under the heading Exclusive Use Area- Storage Spaces shall have the exclusive use of the exclusive use area for storage space of the area of Common Property noted in Schedule E and identified on the exclusive use Plan A attached to this CMS.

(2) Each Owner to whom exclusive use of the space or spaces is given pursuant to this By-Law shall use the space or spaces for the purpose of storage space only and shall not litter the same or use the same so as to create a nuisance to other Owners or Occupiers.

(3) The Body Corporate shall not be liable in any respect for any loss or damage suffered by an Owner or Occupier in respect of its use of the area over which exclusive use has been granted under this By-Law, howsoever caused.

• [10] By-law 20 in the Previous CMS relevantly states:

(1) The Owner of the Lot shown in Schedule E under the heading Exclusive Use Area - Pool shall have exclusive use of the area of Common Property comprising the swimming pool and adjacent area noted in Schedule E and identified as Area P on the exclusive use Plan B attached to this CMS.

(2) The Owner of the Lot to whom exclusive use is given under this By-Law shall be responsible for the maintenance of and operating costs for the part of the Common Property to which this exclusive use By-Law applies.

• [11] By-law 26 in the Previous CMS relevantly states:

(1) The Owner of Lot 42 from time to time shall be entitled to the exclusive use and enjoyment of the areas identified and marked A on the plan attached prepared by Bennett & Bennett ("Annexure A") subject to the following terms and conditions.

(2) The owner of Lot 42 from time to time shall be responsible at their cost and expense for the maintenance and repair of all structures ("improvements") on the roof deck of Lot 42 and the exclusive use areas.

(3) The owner of Lot 42 from time to time must not without first obtaining the written consent of the Body Corporate, alter, renovate or make any addition to the improvements made to Lot 42, or the exclusive use area except to ensure the maintenance and repair of the improvements which remains the responsibility of the Owner of Lot 42 and the Body Corporate shall not be responsible for nor be required to arrange or contribute to any maintenance or repair of any improvements.

(4) If the owner of Lot 42 fails to comply with its obligations under this By-Law, the Body Corporate may at its option and without obligation attend to any necessary maintenance and repairs and the cost will be recoverable from the Owner of Lot 42 from time to time as a liquidated debt.

• [12] Current CMS
  • By-law 19 in the Current CMS remains the same as by-law 19 in the Previous CMS.
  • By-law 20 in the Current CMS remains the same as by-law 20 in the Previous CMS.
  • By-law 25 in the Current CMS remains the same as by-law 26 in the Previous CMS however, is renumbered.

• [13] Schedule E of the Previous CMS contains exclusive use allocations regarding car parks, storage spaces, the pool and rooftop. However, the Current CMS was mistakenly registered without the following exclusive use allocations in Schedule E regarding storage spaces, the pool and rooftop (which were contained in the Previous CMS).

• [14] The 2024 AGM authorised changes to the by-laws in Schedule C pursuant to resolutions 11 - 16 (inclusive). A copy of the minutes for the 2024 AGM was attached to the application.[3] These new by-laws related to:
  • Smoking/ vaping
  • Vehicles
  • Keeping of animals
  • Feeding wild birds
  • Charging electric vehicles
  • Charging of Devices with Lithium-ion Batteries
• [15] The Current CMS,[4] recorded on 24 October 2024, incorporated the above amendments to the by-laws. However, this CMS was mistakenly registered without the following exclusive use allocations in Schedule E regarding storage spaces, the pool and rooftop (which were contained in the Previous CMS):

• [16] Schedule E of the Current CMS only contains exclusive use allocations regarding car parks. These allocations are the same as the Previous CMS. Therefore, there are no concerns regarding these allocations.
• [17] The Applicant did not authorise the removal of the exclusive use allocations from Schedule E regarding storage spaces, the pool and rooftop, at the 2024 AGM or at any general meeting since the Current CMS was registered.
• [18] The general request lodged with the Current CMS did not advise that changes would be made to Schedule E, as the only authorised changes were the by-law changes in Schedule C approved at the 2024 AGM.

• [19] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act, or about the exercise of rights or powers or performance of duties under the Act.[5]

• [20] Subsection 227(2) of the Act provides:

An application by a person mentioned in subsection 1(a) to (h) for a declaratory order about the operation of the Act is also a dispute even if there is no respondent or affected person for the application.

• [21] Under section 62 of the Act, changes of substance to exclusive use allocations require approval in the form of a resolution without dissent. That section of the Act relevantly states:

62 Body Corporate to Consent to Recording of New Statement

(1) This section provides for the form of the consent of the body corporate for a community titles scheme to the recording of a new community management statement for the scheme in the place of the existing statement for the scheme.

(2) The consent must be in the form of a resolution without dissent.

(3) However, the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to the following -

(a) differences in the by-laws (other than a difference in exclusive use by-laws);

(b) the identification of a different regulation module to apply to the scheme.

(4) The consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the new statement is different from the existing statement only to the extent necessary for 1 or more of the following -

(a) compliance with a provision of this Act under which the body corporate is required to lodge a request to record a new statement for a purpose stated in the provision;

(b) compliance with the order of an adjudicator, the District Court or QCAT made under this Act for the lodging of a request for the recording of the new statement;

(c) changing the community titles scheme to give effect to an approved reinstatement process;

(d) changing the community titles scheme to reflect a formal acquisition affecting the scheme;

(e) recording the details of allocations of common property or body corporate assets made under an exclusive use by-law;

(f) implementation of development proposed under the existing statement or under the provisions of a community management statement to which the existing statement is subject;

(g) showing the location of a service easement for the community titles scheme by including a services location diagram;

(h) amalgamating or subdividing lots included in the community titles scheme;

(a) reproducing the existing statement without any change of substance.

• [22] The applicant body corporate seeks a declaratory order to bring this matter to an end, rather than require the Applicant, with its 526 lots, to try and achieve a resolution without dissent, and then subsequently proceed to the Commissioner's Office when the resolution inevitably fails.
• [23] Schedule 5 to the Act contains a non-exhaustive list of orders which may be made by an adjudicator, including item 2:

An Order requiring the body corporate to lodge a request to record a new community management statement, regardless of whether the body corporate consents to the recording.

• [24] In the decision Q1 [2021] QBCCMCmr 466, I dealt with a similar circumstance where exclusive use allocations had been mistakenly omitted from Schedule E, attached to a newly recorded CMS. In that case I stated:

[16] I am in agreement with the Applicant's submission that having regard to the above provision and the adjudicator's decision in Marrakesh [2019] QBCCMCmr 58, it has two options to validly correct the Error in its CMS, being either:

1. To submit a motion to a general meeting and seek a resolution without dissent; or
2. lodge an adjudication application seeking a declaratory order deeming that the Applicant was authorised to correct the Error and lodge the Current CMS

[17] I also accept the Applicant's submission that there would be little utility in seeking submissions from all owners, given that the application relates to legislative intricacies of which owners are unlikely to be familiar, and any submission cannot change the indisputable facts...

• [25] The decision in Marrakesh referred to the District Court decision of Burrell v Body Corporate for Boulevard North [2010] QDC 352 where McGill DCJ stated:

There is, however, a well-recognised equitable doctrine which can be called in aid here, the doctrine of rectification of instruments. It is well established that in many cases where a written formal document embodies a mistake, the document may be rectified by a court of equity. The basis of the doctrine is that the document, which was brought into existence to give effect to the intention of the parties, did not accurately reflect that intention. Commonly the doctrine is applied in relation to written instruments inter partes, usually contracts, and most of the statements in relation to its operation apply in that context.

• [26] In Body Corporate for Palm Springs Residences v J. Patterson Holdings Pty Ltd [2008] QDC 300, McGill DCJ held that s 276 of the Act gives an adjudicator the power to grant equitable relief, where an applicant is able to show that there was a proper basis on equitable grounds for such an order being made.[6]
• [27] In the present case I am of the view that the doctrine of rectification of instruments can be relied upon to rectify the mistake in the latest Community Management Statement. I am also satisfied that it is appropriate to make the requested declaratory order are sought to bring to end this matter once and for all, rather than require the Applicant, with its 43 lots, to try and achieve a resolution without dissent, and then subsequently proceed to the Commissioner's Office when the resolution fails.
• [28] I therefore make the following orders:
  1. I declare that the Body Corporate for Yachting Towers CTS 12238 was not authorised to remove the exclusive use allocations regarding the storage spaces, pool, and rooftop, from the community management statement registered on 24 October 2024 with dealing number 723622085.
  2. I order that within 3 months the Body Corporate for Yachting Towers must record a new community management statement that reinstates the relevant exclusive use allocations that were wrongly omitted in the community management statement registered on 24 October 2024 with dealing number 723622085.

[5] Section 276(1)(a) and (b) of the Act

[6] See the general statement as to the requirements for rectification in Pukallus v Cameron [1982] HCA 63; (1982) 56 ALJR 907 at 909.