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

GENERAL MEETING MOTION - where a motion which proposed changing exclusive use car park allocations failed to achieve a resolution without dissent -whether the opposition of other owners to the motion was unreasonable in the circumstances.

• [1] This application is about a motion to record a new community management statement (CMS) to change the allocation of exclusive use car spaces at the scheme.
• [2] Currently 7 lots (Lots 1, 2, 4, 6, 7, 8 and 9) are allocated exclusive use of car spaces on common property under the by-laws, while 3 lots (Lots 3, 4 and 10) are not. At an extraordinary general meeting (EGM) on 9 January 2025 the body corporate considered Motion 2 which proposed a new CMS that would give each lot an exclusive use car space. The motion failed. The applicant disputes this decision and wants Motion 2 to be passed. He says the body corporate is not complying with the conditions of the scheme's development approval. He also says all owners share equal lot entitlements and contribute equal levies and should have equal exclusive use of the car spaces on common property.

• [3] Pacific Villas community titles scheme 5360 (Pacific Villas) is a 10-lot scheme at Sunshine Beach. The Standard Module applies. The scheme is registered as building units plan 9979.
• [4] The application seeks an order: That Motion 2 "Recording of new CMS" of EGM 9 January 2025 be ruled as passed or carried.

• [5] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter.[2]

• [6] This application was lodged on 28 January 2025. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[3] which was amended.[4]
• [7] The Commissioner invited submissions from the committee, the dissenting voters who were named as affected persons, and all owners.[5] Submissions were made by the body corporate and the owners of 7 lots. The applicant obtained and responded to the submissions.[6]
• [8] The application was referred to adjudication.[7] I have now investigated the dispute, including reviewing the submitted material and titles records.[8]

• [9] The issue in this dispute is whether the outcome of EGM Motion 2 should be overturned, such that the body corporate must record a new CMS in accordance with the motion. In determining this matter, I will consider the history of exclusive use car parking and the basis for the order.

• [10] Development approval for Pacific Villas was given in December 1987. Condition 3 of the approval included a requirement for at least 13 off-street parking spaces, comprising 10 covered spaces and 3 uncovered spaces.
• [11] Pacific Villas was then created on its registration on 23 April 1990 under the Building Units and Group Titles Act 1980 (BUGT Act) that was in force at the time. The recorded survey plan shows 5 buildings with 2 lots in each building, with each lot located on Levels B, C, D and E.
• [12] The survey plan shows an area marked 'common carparking' on Level A on the western side of the building that contains Lots 1 and 2. Single car spaces marked 'garage' are shown on the common property on the western side of Lots 1 and 7 on Level B. Further spaces marked 'garage' are shown on common property on Level B next to the building containing Lots 9 and 10. Areas marked 'garage' are also shown within the boundaries of each lot on Level B.
• [13] When the scheme was created, the by-laws in force were those contained in schedule 3 of the BUGT Act. There was no allocation of exclusive use over common property at that time.
• [14] However, by-law amendments were recorded soon after, repealing the original By-law 11 and recording new By-laws 11 to 71.[9] Most relevantly, By-law 71 provided for exclusive use car spaces outlined in an attached plan A, with each lot allocated a car space of the same number as the lot. That plan shows the 10 car spaces outside of lots on the survey plan that appear to be numbered consecutively from 1 to 10.
• [15] The by-laws were changed again less than 2 weeks later.[10] These amendments repealed By-law 71 and recorded By-law 72 instead. By-law 72 allocated car spaces 1, 2, 6, 7, 8, 9 and 10 to the lots with the same number. Car spaces 3, 4 and 5 were listed as being 'visitors parking'. The attached plan A remained unchanged.
• [16] Later in 1990 the by-laws were amended again.[11] By-law 72 was repealed, and By-law 73 was recorded. Under By-law 73 car spaces 1, 2, 5, 6, 7, 8 and 9 were allocated to the lots with the same number. Car spaces 3, 4 and 10 were listed as being 'visitors parking'. An updated (and clearer) plan A was attached, but the location of the car spaces remained unchanged.
• [17] After the commencement of the current Act, a CMS was automatically recorded pursuant to the transitional provisions.[12] The previously recorded by-laws remained in effect under that CMS.
• [18] A new CMS was then recorded in 2007.[13] The applicant appears to be one of two signatories who executed the CMS on behalf of the body corporate. This CMS contains 15 by-laws in schedule C. In this CMS, By-law 15 provides for the allocation of exclusive use areas pursuant to schedule E and the attached sketch plans. Schedule E allocates car spaces 1, 2, 5, 6, 7, 8 and 9 on sketch plan A for car parking. These allocations are the same as By-law 7. Also, By-law 2 provides for vehicles and includes that an occupier must not park a vehicle or allow a vehicle to stand in a 'regulated parking area' which is defined as an area designated as being available for use by invitees as visitor parking.
• [19] In December 2011 the committee resolved to give all occupiers permission to park on the common property outside their lots, subject to listed conditions.
• [20] An EGM in July 2021 considered a motion like 2025 EGM Motion 2 to give all lots an exclusive use car space. The motion failed with no votes in favour, 6 against and 3 abstentions.
• [21] It appears that over many years the garages on the ground floor within the lots was, at least in most cases, enclosed and converted to additional living spaces. In March 2022 the Noosa Council apparently wrote to owners asserting the enclosure of these car ports, and their use for short term accommodation or a living space, breached the development approval. It said the options were to reinstate the carports or lodge a development approval for the alterations.
• [22] A development application was subsequently lodged to address the issue. In May 2023 the Noosa Council issued a decision notice approving the application and adding 8 new conditions of approval for the scheme. The new conditions 22, 23 and 24 related to carparking and referred to new uncovered car spaces 11, 12 and 13 to be marked 'visitor parking'.
• [23] A plan attached to the decision notice showed car spaces 1 to 10 in the original locations and new car spaces 11, 12 and 13. It appears the additional spaces have not yet been created.
• [24] At an annual general meeting in July 2023 the body corporate agreed to adopt an 'approved revised parking plan' but rejected a proposal to move a bin storage area, which is apparently necessary to fully implement the plan. The body corporate apparently appointed a sub-committee to investigate alternative parking and bin storage solutions.
• [25] EGM Motion 2 proposed a new CMS that would include a new schedule E to allocate car spaces 1 to 10 to Lots 1 to 10 respectively. The motion lost with 1 vote for and 6 votes against. The EGM minutes record that Lots 1, 2, 4, 5, 6, 7 and 8 were represented at the EGM, but Lots 3, 9 and 10 were not. The applicant wrote to the dissenting voters on 3 February 2025 seeking to ascertain their objections but says he received no response.

• [26] The applicant says the scheme was created with 20 car spaces, which exceeded the council requirement for 13 off-street spaces, with no visitor parking required. He says all lots were owned by the same company when By-laws 71 and 72 were recorded, and that company owned 6 lots when By-law 73 was approved.[14] He says the allocation of spaces for visitor car parking in By-laws 72 and 73 was unnecessary and took away the intended use of those spaces for no genuine reason. He says the company that owned the lots had no future interest in the allocated use of the lots and did not vote as any future long-term owners would have.
• [27] The applicant further says the body corporate is bound by the development approval issued in 2023 and the EGM Motion 2 was a step in satisfying the approval conditions. He says the body corporate has given no indication of complying with the conditions. He claims a lack of interest in the property by other owners. He says owners voted no in the belief that Lots 3, 4 and 10 would receive an undue benefit, but the vote disregards the 2023 council decision.
• [28] The body corporate's submission details some history of this matter. It argues there is no basis to disturb the outcome of the 2025 EGM when:
  1. The car spaces in question have been designated and used for visitor parking for 35 years. All current owners purchased with the current exclusive use parking in place.
  2. 6 of the 7 voters at the EGM voted against the motion.
  3. As the additional spaces proposed by the approved revised parking plan have not yet been constructed, spaces 3, 4 and 10 are the only spaces currently allocated for visitor parking. The motion would leave the body corporate without designated visitor parking.
  4. No compensation was proposed as part of the motion or otherwise for the conversion of the car spaces to exclusive use.
• [29] The owners of Lots 1, 2, 5, 6, 7, 8 and 9 made submissions opposing the application.
• [30] A key issue canvassed in the submissions was the loss of visitor parking. The submitters note the difficulty of street parking in the area and the impact of the loss of visitor parking.
• [31] One submitter comments that the motion disregards the council requirement for visitor parking. Another says the body corporate has been seeking solutions to the council directives about car parking and the slow progress is not due to a lack of effort. The submitter said any change to car park entitlements should align with those efforts and not be ad hoc.
• [32] The submissions also refer to the loss of common property that is currently available for the use of all. They say the motion does not offer compensation from those who would benefit from the motion to the body corporate for the loss of common property.
• [33] One submitter says they purchased their lot knowing some lots did not have a garage and that they were paying more than for a lot without a garage. Another says Lots 3, 4 and 10 were purchased without exclusive use and that their purchase price was 5-10% less than the others.
• [34] There are also references to the cost of creating new car spaces and the disruption. Another says the financial implications of the CMS change needed to be discussed.
• [35] One submitter says they were not satisfied that all options had been considered and discussed. Another owner says the decision needs to be in the interest of all owners and not just individuals. A further submission noted this issue had only arisen recently.
• [36] No submissions were made by the owners of Lots 3 and 10. In his application, the applicant says the owner of Lot 3 was invited to submit a response but did not, and the owner of Lot 10 was unable to submit a formal response. The applicant further says he holds a proxy for Lot 10 and the owner supports his actions, but he provides no evidence of that, and he did not exercise a proxy for Lot 10 at the EGM. I note Lot 10 is owned by a company.
• [37] The applicant's response to the submissions disputes some of the statements made and asserts that other owners lack knowledge or understanding of the issues. It includes:
  1. The body corporate was developed with a CMS that provided an exclusive use car space to each lot and there were no requirements for visitor parking by council.
  2. A company owner took away the original exclusive use for Lots 3, 4 and 10. He believes that was an abuse of process which did not take into account that it would be almost impossible for future owners of Lots 3, 4 and 10 to regain their exclusive use. There were no valid reasons for the creation of By-law 72 and then By-law 73.
  3. He does not accept that a monetary value can be assigned to the reinstatement of the originally designated exclusive use for Lots 3, 4 and 10.
  4. Any perceived value of an exclusive use car space attached to lots in 1990 cannot be quantified due to the nature of the mortgagee in possession sales at the time.
  5. The council decision in March 2023 shows the allocation of car spaces 3, 4 and 10 for exclusive use is mandated as is the creation of visitor car spaces 11, 12 and 13. The development approval must be complied with.
  6. Those requirements negate any perceived loss of common property. All the car spaces are common property - it is simply a matter of allocation.
  7. Failure to abide by the council decision could lead to the council requiring the reinstatement of the original garages. Any changes would requirement a new approval process to be instigated.
  8. There will be no loss of visitor parking if the body corporate complies with the development approval.
  9. The reference to the lack of compensation does not acknowledge that Lots 3, 4 and 10 contribute equal levies to the body corporate and the other 7 owners enjoy the benefits through an allocated exclusive use car space.
  10. This application is the only way to address past events and satisfy the current development approval. If it is unsuccessful, the only recourse for the owners of Lots 3, 4 and 10 will be an application to Noosa Council that the development approval conditions have not been satisfied by the body corporate. If this application is successful, he believes the body corporate will create the visitor parking called for in the development approval without approaching council for a revised approval.

• [38] The legislation provides for exclusive use by-laws which attach to a lot and give the occupier of the lot exclusive use of, or other special rights to, common property or an asset.[15]
• [39] There is no requirement for a body corporate to allocate exclusive use of common property. And if it does, regardless of the recorded lot entitlements for each lot, there is no statutory requirement for lots to have equal or equitable exclusive use allocations.
• [40] A body corporate must usually pass a resolution without dissent to record a new CMS.[16] In particular, a resolution without dissent is required to record a new CMS that changes an exclusive use by-law.
• [41] I note also that an exclusive use by-law can only attach to a lot, or stop applying to the lot, if the lot owner benefiting from the by-law consents in writing to the new CMS before the passing of the resolution without dissent to record the new CMS or votes personally on the resolution.[17]

• [42] As EGM Motion 2 sought to change the exclusive use car parking allocations in schedule E of the CMS, pursuant to By-law 15, a resolution without dissent was required. A resolution without dissent was clearly not achieved at the EGM.[18]
• [43] An adjudicator cannot overturn a body corporate decision simply because a party disagrees with the decision or considers it to be unfair. An adjudicator may only make an order that is just and equitable in the circumstances to resolve a dispute.[19] Without limitation, schedule 5 of the Act sets out orders that can be made. Item 10 contemplates an adjudicator giving effect to a motion, or a variation of a motion proposed, if a motion requiring a resolution without dissent was not passed because of "opposition that in the circumstances is unreasonable".
• [44] In regard to the test of whether the opposition to a proposal was unreasonable, the High Court has said the task for an adjudicator is to identify a ground of opposition and inquire as to whether that ground was a rational basis for opposition.[20] This is to be considered in the context of the right to vote as a proprietary right of lot owners. The High Court said the legislation does not contemplate the vote of an owner genuinely opposed to the reduction in their rights to common property being overridden because it may be considered a reasonable course of action. The opponent to a proposal is not acting unreasonably by failing to act sympathetically or altruistically towards a proponent. An applicant bears the onus of substantiating that a dissenting voters' opposition was unreasonable in the circumstances.
• [45] I will consider the opposition to EGM Motion 2 below. However, I would make the general observation that all owners have the same voting rights regardless of the use to which they put their lot, how often they visit their lot, or their perceived interest in their lot or the scheme.
• [46] Also, while EGM Motion 2 (if passed) would attach By-law 15 to Lots 3, 4 and 10, I note that the owners of Lots 3 and 10 did not vote personally on the motion. The applicant has not provided evidence that the owners of either lot specifically consented in writing to By-law 15 attaching to their lots before the EGM as would be required.

• [47] I will comment on the key issues raised on each side of this dispute.

• [48] The applicant refers to the intent of the original By-law 71 and restoring the originally intended exclusive use allocations. However, By-law 71 was not recorded until after the body corporate was created and was only in place for less than 2 weeks.
• [49] The applicant questions the need for By-law 72 and 73 but has not established that they were not validly approved and recorded at the time. He has not evidenced that any owner at the time was disenfranchised or any other defect in the resolutions. There was no challenge to the decisions to record By-laws 72 or 73, and any such challenge would now be out of time.[21] The applicant also has not established any error in the by-laws that were recorded in 1990 or that the recorded by-laws did not reflect the intention of the owners at the time.
• [50] While the applicant may not agree with the exclusive use allocations recorded in 1990, that does not mean they were unjustified or invalid. It is irrelevant that there was no council requirement for visitor parking at the time; it was open to the owners at the time to decide to reserve common property for visitor parking. Moreover, it was open to the owners at the time to decide that some lots would have an allocated car park on common property, and some would not. The owners at the time were also entitled to vote based on their own proprietary interests (including, for example, their capacity to sell their lots); they were not required to have regard to the needs or interests for other owners or future lot owners.
• [51] There is some discussion in the submitted material about the original purchase price for each lot and whether some purchasers paid a premium for lots with an exclusive use car space. It is not necessary for me to consider the circumstances of the sales in 1990. Regardless of the price paid for different lots, the applicant has provided no evidence that Lots 3, 4 and 10 were purchased in the belief that they had an exclusive use car space or would be allocated one.
• [52] In that context, the status quo is the car parking allocations that have been in place without alteration for nearly 35 years and were in place when the applicant acquired his lot. While the applicant may consider it desirable for all lots to have equal car park allocations, as they briefly did soon after the scheme was established, he has not established a requirement for that.

• [53] The applicant then argues that the new CMS is required for the body corporate to comply with the development approval conditions as of May 2023.
• [54] There was always a requirement for a minimum of 13 car spaces at this scheme, although no specific requirement for visitor parking. As the original garages within lots were converted to living spaces, there was a reduction in the original 20 car spaces. The Noosa Council decision notice in May 2023 confirms the requirement for a minimum of 13 parking spaces. It also specifies that 3 spaces must be signposted as for visitor parking.
• [55] However, contrary to the applicant's claims, it is not evident that Noosa Council requires 10 car spaces to be allocated for exclusive use or specify which lots those spaces must be allocated to. The plan attached to the council decision in May 2023 labels the 10 original car spaces as 'indicates allocated exclusive use area for carparking'. However, that appears to be just a descriptor. It does not of itself evidence a requirement by Noosa Council that car spaces 3, 4 and 10 be allocated for the exclusive use of any particular lot or any lot at all. There is no such requirement stated in the conditions of approval. Councils do not usually concern themselves with exclusive use allocations. Councils are usually only concerned with the number of car spaces at the site, their location, and the number designated for visitor parking.
• [56] The applicant refers to an email from a Noosa Council planner in February 2023. But the statement "Spaces 3 & 4 are to be dedicated as visitor spaces, with proposed spaces 12 & 13 to be allocated to owners of the units." does not evidence a council requirement that spaces 3 and 4 be allocated to the owners of Lots 3 and 4 or to any other lot. Moreover, this appeared to have been part of ongoing communications and was not reflected in the final decision.
• [57] Compliance with the conditions of development approval at Pacific Villas is a matter for Noosa Council. However, the applicant has not evidenced that the allocation of car spaces 3, 4 and 10 for the exclusive use of Lots 3, 4 and 10 is required to meet the development conditions.

• [58] It does not appear to be disputed that the body corporate has yet to create the additional car spaces on common property that are intended to be signposted for visitor parking and required to achieve the minimum of 13 car spaces. In that respect it appears the body corporate is not currently complying with the conditions of approval for the scheme. Arguably the body corporate would not administering the common property in the interests of all owners or acting reasonably if it is not complying with the conditions of development approval.[22]
• [59] However, the implementation of EGM Motion 2 on its own, before the creation of those additional car spaces, would clearly leave the body corporate without visitor car parking at all. That would seemingly worsen the current non-compliance with the council requirements. And regardless of differing views on the availability of street parking or the need for onsite visitor parking, the applicant has not established that it was unreasonable for other owners to view that situation as adversely affecting the use of the scheme by other owners and occupiers.
• [60] In that context, I consider that the immediate loss of any visitor parking facilities at the scheme, even if it was only temporary until new spaces could be created, was a rational basis for owners to vote against EGM Motion 2. Moreover, the apparent desire of some to address the creation of the required new car spaces before considering any allocation of car spaces 3, 4 and 10 does not appear to be unreasonable.

• [61] The submissions question the lack of compensation for the proposed grant of exclusive use car spaces. The applicant refutes any loss of common property and the ability to assign a monetary value for the 'reinstatement' (in his view) of the original exclusive use allocations. He refers to the suggestion of payment as being 'unpalatable' where there was an injustice in exclusive use of car spaces 3, 4 and 10 being taken away.
• [62] It is accepted that the right to exclusively use common property under an exclusive use by-law is a valuable right.[23] A lot with a secure right to use part of common property, to the exclusion of others, would be more valuable than one without that right.
• [63] The proposal in EGM Motion 2 would grant additional exclusive use rights. Car spaces 3, 4 and 10, which are currently unallocated common property, would be allocated for the exclusive use of Lots 3, 4 and 10. The areas would remain common property (as with all exclusive use areas), but other occupiers and their invitees would no longer have any capacity to use those areas. Accordingly, while the areas would remain common property, there would clearly be a loss of the right to the use of the common property by others.
• [64] While Lots 3, 4 and 10 briefly had exclusive use rights to a car space in 1990, they have not done so for some 35 years. As outlined above, ostensibly that was and is lawful. Accordingly, EGM Motion 2 proposed that the owners of Lots 3, 4 and 10 acquire a valuable right that they did not originally purchase and do not currently have a legal entitlement to.
• [65] I see no reason why the body corporate could not resolve to approve a grant of exclusive use without compensation being paid for the acquisition of that right. But the High Court previously accepted a Queensland Civil and Administrative Tribunal conclusion that the failure to offer compensation for the acquisition of exclusive use of a small area of common property airspace that had no apparent utility to anyone else was a reasonable basis for other owners to oppose the proposal.[24] The applicant has not established that it was unreasonable for the dissenting voters to oppose EGM Motion 2 because there was no compensation offered.
• [66] Furthermore, I do not accept that a monetary value could not be ascribed to the car spaces. It is irrelevant what the value of the car spaces may have been in 1990 or the circumstances of the sale in 1990. The question is the current value. There seems to be no reason why a registered valuer could not determine a value for the car spaces now.

• [67] For the reasons outlined, I am not satisfied the applicant has established that the opposition to EGM Motion 2 was unreasonable in the circumstances. Moreover, I have been given no evidence that all owners to whom proposed exclusive use allocations would attach as a result of Motion 2 voted personally on the motion or consented in writing to the new CMS before the EGM. It follows that I do not consider there is any basis to grant the order sought.
• [68] The body corporate should ensure it complies with the current conditions of its development approval, including by creating new car spaces for visitor parking. Once that occurs, the body corporate could consider if it wishes to retain car spaces 3, 4 and 10 for visitor parking, or for general occupier parking, or to allocate them for the exclusive use of individual lots. Any owner seeking an allocation of exclusive use rights for the purpose of car parking would bear the onus of presenting a proposal to the body corporate and convincing other owners to support it.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[9] Recorded 10 May 1990, Titles dealing number 601144636

[10] Recorded 22 May 1990, Titles dealing number 601144637

[11] Recorded 5 November 1990, Titles dealing number 601144638

[12] Recorded 15 July 2000, Titles dealing number 704180531

[13] Recorded 18 January 2007, Titles dealing number 710268668

[14] The company referred to appears to have been the mortgagee in possession of the company that was the original owner and developer of the scheme.

[20] French CJ, Bell J, Keane J and Gordon J in Ainsworth v Albrecht [2016] HCA 40 at 56 and 58

[23] Body Corporate for Edgewater Gardens CTS 10507 v Trankalis & Ors [2003] QDC 019, para 54

[24] Ainsworth v Albrecht [2016] HCA 40 referencing Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 175