COMMUNITY MANAGEMENT STATEMENT - whether the community management statement includes a change that was not properly authorised - whether a new statement should be recorded to rectify the unauthorised change.

Act, ss 62, 171

1. Motion 14 passed at the annual general meeting of the Body Corporate for Saks on 5th Ave on 26 September 2024 did not have effect to authorise the removal of the second sentence of By-law 3(b), as recorded in the community management statement registered on 22 January 2013 (dealing number 714897357).
2. Within three months of the date of this order, the Body Corporate for Saks on 5th Ave must lodge a request to record a community management statement that reinstates the sentence.

[1] This application is about the validity of a community management statement (CMS).

[2] Under the CMS as recorded in 2013,[1] each lot is granted exclusive use of one or two car spaces on common property and By-laws 2 and 3 related to vehicles, parking, and the use of common property. By-law 3(b) included the sentence "The proprietor or occupier shall park their vehicles in the exclusive use area granted to the proprietor for that purpose pursuant to by-law 36, and shall use such area only for its intended purpose of motor vehicle parking".

[3] At an annual general meeting (AGM) on 26 September 2024, the body corporate resolved to change some of its by-laws. The relevant motions were listed as requiring a special resolution and each passed without any dissenting votes. Notably, Motion 14 proposed replacing the previous By-laws 2 and 3 with a new By-law 2 about vehicles. The new By-law 2 did not include the sentence about the use of exclusive use car spaces. A new CMS was recorded in November 2024 in reliance on the AGM resolutions.[2]

[4] The application says the new CMS was mistakenly recorded without the former By-law 3(a) obligation about the use of exclusive use area. It says it did not validly authorise the removal of that obligation. It notes that changes to exclusive use by-laws require a resolution without dissent and the written consent of the owners granted exclusive use. It says Motion 14 was not a resolution without dissent and the owners granted exclusive use did not consent to it.

[5] The body corporate notes that its options to correct the unauthorised removal of the obligation is to submit a motion requiring a resolution without dissent to a general meeting or to seek the declaratory order of an adjudicator. It says it pursued the latter because of the difficulty of achieving a resolution without dissent even to correct an error.

[6] Saks on 5th Ave community titles scheme 32894 (Saks) is a 36-lot scheme at Burleigh Heads. The recorded CMS shows the Accommodation Module applies. The scheme is registered as survey plan 161050.

That the Body Corporate for Saks on 5th Ave CTS 32894 was not authorised to remove the second sentence of by-law 3(b) from the community management statement registered on 22 January 2013 with dealing number 714897357 and that it is permitted to reinstate the relevant sentence of this by-law by registering a new community management statement.

[8] 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.[3] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[4]

[9] This application was lodged on 27 November 2025 pursuant to committee resolution of 11 November. The Commissioner invited submissions from all owners.[5] No submissions were made. The application was referred to department adjudication.[6] I have investigated it.[7]

[10] The Act provides for exclusive use by-laws, which attach to a lot.[8] Exclusive use by-laws give the occupier of a lot exclusive use to the rights and enjoyment of, or other special rights about, the common property or body corporate asset identified in the by-law.

[11] A body corporate must normally consent to record a new CMS by passing a resolution without dissent. That includes if the new CMS is required because of a change to an exclusive use by-law.[9] Some CMS changes only require a special resolution.[10] There are also instances whether neither is required, so that a committee resolution would be sufficient.[11] One such exception is "reproducing the existing statement without any change of substance".[12] However, if there is any change to the legal rights of parties as a result of a CMS that has been recorded, even if only to correct an error in what should have been recorded, that will amount to a change of substance.[13]

[12] By-law 36 (now renumbered By-law 35) is the substantive by-law by which lots are granted exclusive use at this scheme. However, By-law 3(a) imposed conditions on the use of the exclusive use areas. I am satisfied that removing that provision changed the rights under the grant of the exclusive use and so had effect as a change to the exclusive use by-law. As such, I am satisfied that a resolution without dissent was required to remove that sentence from the by-laws. Adjudicators have taken this view in numerous previous decisions.[14]

[13] Although there were no dissenting votes cast for Motion 14, the motion was apparently only notified as requiring a special resolution. The Supreme Court of Queensland has considered a case where a special resolution was required for a motion that achieved sufficient votes for a special resolution but was listed as an ordinary resolution.[15] The Court said there was a practical attraction to the argument that the motion passed if it achieved the votes required. But given the mandatory words of the regulations, the Court concluded the motion was not passed by special resolution. Applying that principle, it is not evident that Motion 14 was passed by resolution without dissent, even though there was no dissent to it.

[14] Also, an exclusive use by-law may only attach to a lot or cease applying to a lot if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the CMS which will incorporate the exclusive use by-law, or if the lot owner votes personally on the resolution.[16] It has been accepted by adjudicators that a change in the rights or conditions applying to a grant of exclusive use is a change to the by-law that requires the written consent of owners, unless they vote personally on the motion.[17] It is not disputed that owners who did not vote on Motion 14 did not consent to the change.

[15] There has been no objection to the order sought. In the circumstances I am satisfied it is appropriate to declare that the removal of the second sentence of the former By-law 3(b) was not authorised by 2024 AGM Motion 14. I will also make an order authorising the body corporate to lodge a request for a new CMS reinstates the relevant sentence.

[16] Although the application does not discuss it, I would assume the relevant sentence should be added to the new By-law 2. The reference to By-law 36 should be updated By-law 35 as renumbered. The new statement should be recorded within 3 months.

[1] Titles dealing 714897357, recorded 22 January 2013

[2] Titles dealing 723676534, recorded 15 November 2024

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

[13] Burrell v Body Corporate for Boulevard North [2010] QDC 352, paras 36-37

[14] For example, Circle on Cavill [2018] QBCCMCmr 287, Meadow Peak [2017] QBCCMCmr 446, Vardon Point Apartments [2010] QBCCMCmr 529, Raffles at Runaway Bay [2005] QBCCMCmr 675

[15] Body Corporate for Oceana on Broadbeach CTS 24163 v 21 Broadbeach Blvd Pty Ltd [2025] QSC 68

[17] For example, Meadow Peak [2017] QBCCMCmr 446, Vardon Point Apartments [2010] QBCCMCmr 529