Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

COMMUNITY MANAGEMENT STATEMENT - whether the body corporate changed the dimensions of an exclusive use area without valid consent - whether a by-law regulating the use of car spaces is valid.

Act, ss 62, 170, 171

• [1] This application is about an exclusive use car space and its use.
• [2] The applicants are the owners of Lot 68 and are allocated exclusive use of car space 62 under the community management statement (CMS). The applicants assert that a CMS recorded in February 2000 reduced the size of car space 62 without a resolution without dissent or the consent of the owners at the time. So, they say the change to the space was invalid.
• [3] There is then an issue with the use of car space 62. The applicants say two vehicles have always been parked in car space 62, but the body corporate has asserted the applicants are in breach of By-law 17 by parking two vehicles in it. The applicants say the by-law is not able to regulate the exclusive use parking areas. They say unless the body corporate passes a resolution without dissent and obtains their written consent, By-law 17 is not enforceable against them so more than one vehicle can be parked in car space 62.
• [4] I will consider the validity of the current exclusive use allocation and By-law 17.

• [5] Waterways Apartments community titles scheme 12646 (Waterways Apartments) is a 69-lot scheme in Surfers Paradise. The CMS shows the Standard Module applies. The scheme is registered as building units plan 2492.
• [6] The application seeks the following orders:

(a) a declaration that the changes to the Exclusive Use Area in the 2000 CMS are invalid; and

(b) a declaration that By-Law 17 contained within the 2023 CMS is invalid;

(c) an order that the Body Corporate shall, within three (3) months of the date of the order and at the expense of the Body Corporate, prepare and lodge with the Registrar of Titles a request to record a new community management statement which reflects the exclusive use area provided in car park space 62 as recorded in Annexure A to the Notification of Change of By-Laws dated 23 June 1977; and

(d) such further or other order(s) as may be determined to be just and equitable for the purpose of determining this dispute.

• [7] 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 under the dispute resolution provisions.[2]

• [8] This application was lodged on 5 March 2025. The Commissioner invited submissions from the committee and all owners.[3] Four submissions were received. The applicants obtained and responded to the submissions.[4]
• [9] The application was referred to department adjudication.[5] Subsequently, three statements were submitted by owners in support of the application.
• [10] I have investigated the dispute, including reviewing the submitted material and titles records.[6]

• [11] The body corporate notes some history of the matter and opposes the application.
• [12] Its submission includes:
  1. It does not dispute that, comparing the plans from 1977 and 2000, there was a reduction in car space 62 by excising an area 1.22m wide from the righthand side pillar.
  2. The applicants purchased Lot 68 from owners who purchased the lot almost 2 years after the CMS was registered in 2000.
  3. The applicants have the burden of proof that the CMS was not validly approved.
  4. It does not hold any documents from 1997 to 2003, such as general meeting minutes and agendas. Despite a search, no relevant records have been located.
  5. The absence of records does not prove the change was not approved. It is not uncommon for records to be lost by bodies corporate.
  6. In around July 2023, the then owners of Lot 68 contacted it seeking a grant of exclusive use over the strip of common property next to car space 62. They were advised the committee could not approve that request and the process to be granted exclusive use.
  7. Given the discussions with the previous owners at the time of the pending sale of Lot 68, it seems likely the applicants knew the size of car space 62, and the inability to park two vehicles in it, before purchasing Lot 68.
  8. The applicants did not use the available mechanisms before bringing this application. They have not submitted a motion to a general meeting to address the matter.
  9. It disputes that car space 62 was always intended to accommodate two vehicles. The by-laws have always referred to car space 62 in the singular irrespective of it being larger than other car spaces. It has never been referred to as a double space. That contrasts with Lot 69 which was always referred to as having plural car spaces.
  10. The common property beside car space 62 includes an infrastructure pipe. It does not know when that was installed. The clearance under that pipe is 1,750mm. The minimum height clearance in the Australian Standard is 2,220mm. Accordingly, the area next to car space 62 is not acceptable for parking a vehicle. There is a risk and hazard to using the area for that space. Parking two vehicles in the area would not meet the Australian Standard even if car space 62 included the adjacent 1.22m area.
  11. Car space 62 does not meet the specifications noted on the Gold Coast City Plan of 1974. That says a minimum width of 2,775mm was required for each car space with a solid wall next to it. Two car spaces would require a total of 5.55m. Car space 62 is 3.92m. Even with the additional 1.22m, the total area would be insufficient. That indicates car space 62 was only ever intended to be a single space, even if two cars could fit.
  12. Without dimensions, the original plan was indicative only. Changes were required to accurately reflect the relevant dimensions. Other car spaces were also adjusted.
  13. The 2000 plan was registered more than 24 years ago. It was not questioned, even by previous owners of Lot 68, until the applicants purchased in 2023. In the absence of a challenge, it was accepted and relied upon.
  14. The applicants' inability to park their second vehicle in car space 62 is not a basis to alter the exclusive use allocations.
  15. The owner who stated that two cars were previously parked in car space 62 is the spouse of the agent engaged to sell Lot 68.
  16. Line markings are not a definitive indicator of the boundaries of exclusive use.
  17. By-law 17 was added pursuant to a special resolution passed in October 1994. It concedes that by-law is invalid because it appears to regulate exclusive use car spaces without the required resolution without dissent and the consent of all owners. This error was made in 1994 and only came to the body corporate's attention by this application.
• [13] Two owners who are apparently also committee members oppose the application. One includes a timeline of some background to the dispute. Both make some similar points as the body corporate's submission. In addition:
  1. One says the 2000 CMS was in response to the 1997 Act requirement to register a CMS and the committee obtained assistance from a surveyor and lawyer to prepare and register it. They say it must be taken that the document was validly authorised.
  2. The other says when the resurvey of the carpark was required in 2000, the surveyors would have needed to take account of applicable legislation and Australian Standards. Given the height under the exposed pipes, they believe the 2000 plans were a correction to the 1977 plan. They say it had the approval of all lot owners in 2000.
  3. One says they cannot recall seeing two cars parked in the space when they have been at the scheme over the last 15 years and a number of other long-term residents also cannot remember it happening. The other says there is no evidence that the previous owners parked two cars in the space. They say the car space was rented to another resident who parked one car in the space, and they have not seen two cars in the space in the 4 years they have lived in the building with a car space nearby.
  4. Both say the solicitor associated with the sale to the applicants was told there was only one car space for Lot 68 and the process required to change that. The applicants decided to proceed with a purchase contract with a CMS that clearly only shows one car space. They say there was no error so there is nothing the committee can approve.
  5. One notes there have been several changes in strata managers in the past 25 years and it is not unusual for some records to be lost. They say it is likely a strata manager disposed of them after 6 years as they did not relate to an ongoing event.
  6. One submits that By-law 17 is valid and was previously unchallenged.
• [14] Another submission from an owner supports the application. They say their family has owned a lot for 30 years and until recently this car space was for used for two cars. They feel there was an error in the 2000 CMS and would like the historic rights restored.
• [15] The applicants' response to the submissions include:
  1. The evidence is that the 2000 CMS was not complied with. They refer to the letter and submission from owners that car space 62 was for two cars, the change in line markings, the build-up of motor oil drips on the line markings, and historical real estate listings that the lot was marketed as having two car spaces.
  2. The body corporate does not controvert evidence from owners that historically the owner of Lot 68 has parked two cars in the car space.
  3. The body corporate submits it does not have records from 1997 to 2003, but quoted from a meeting in October 1999 that was not in the application.
  4. The body corporate had no right to destroy agreements that remain in force, committee and general meeting minutes, and correspondence of significant or continuing interest. Documents consenting to an exclusive use area contain agreements about how an exclusive use area will be governed while the exclusive use by-law remains and is correspondence of significance or continuing interest.
  5. The body corporate has failed to explain its absence of records. That must give rise to the presumption that nothing in those documents would assist the body corporate.
  6. The body corporate does not provide evidence from the periods for which it does have records, including contravention notices to previous owners for breaching the by-laws by parking two cars in the space or dealing with changed line markings.
  7. They dispute that car space 62 was only intended to be a single vehicle space. There are no valid by-laws that limited the use to which the excusive use areas could be put.
  8. The 2000 CMS was more than a redescription and dimensioning of the allocation.
  9. The Australian Standard cited regarding headroom only applied from 2004. The scheme was established before previous versions of that standard existed and building standards do not apply retrospectively. Even if the standard applies, it does not authorise a variation to the exclusive use rights of a lot owner.
  10. The absence of questions about the plan in the 2000 CMS is not suspicious when the plan was not adhered to.
• [16] After this matter was referred to adjudication 3 further submissions in support of the application were lodged. One supports the owners of Lot 68 parking two vehicles in their basement carpark. Another says the same and says that is as it has been since the building was completed. The owners of Lot 69 say that, when they bought their lot in 2022, Lot 68 was also for sale and they compared both. They say both were advertised as penthouses and the apartments with two car spaces, and they met the previous owners of Lot 68 and noted they parked two vehicles in the space. They believe the body corporate is not acting in the best interests of owners by rejecting the offer to purchase the small area.
• [17] Where those additional statements support the application, I have not considered it necessary to provide them to the applicants for comment.

• [18] I will consider the history of the scheme and its by-laws and then address the substantive issues raised by the applicants.

• [19] Waterways Apartments was registered on 25 May 1977 under the Building Units Title Act 1965 (BUT Act) that was in force at the time. The building has 26 levels (Levels A to Z). Level A is a common property basement car park.
• [20] On registration, the default By-laws 1 to 41 in the first schedule of the BUT Act, and By-laws 1 and 2 in the second schedule of the BUT Act, applied. But the by-laws were amended soon after.[7] The amendments were stated to have been made pursuant to a unanimous resolution on 31 May 1977. The numerous amendments most relevantly included:
  1. By-law 41A provided that the proprietor of each lot would be entitled to exclusive use of the 'car space or spaces' with the identifying number shown on the attached plan A.
  2. By-law 43(a) provided that the proprietor of Lot 68 could, at their expense, enclose car space number 62 on plan A. By-law 43 granted other exclusive use areas to Lot 68.
  3. By-law 44 granted the proprietor of Lot 69 the right to enclose car spaces 60 and 61 and granted them other exclusive use areas comparable with those allocated to Lot 68.
• [21] Plan A attached to the 1977 by-laws shows the basement with car parking marked (the 1977 plan). There is nothing on the plan to show who prepared it. No dimensions are shown on the car parking plan, but the width of some car spaces appears to vary from others. Between car spaces throughout the plan there are thick black lines, apparently indicating concrete pillars in the car park area. The body corporate says the pillars have never moved. Car spaces 60 and 61 are marked as two separate car spaces between two pillars. Car space 62 is also shown to be between two pillars but is not marked as two separate car spaces.
• [22] The 1977 plan is similar to plans of the basement that were apparently part of the plans approved by council for the scheme. The location of car spaces and pillars appear to be similar in the approved plans. A single space in the location of car space 62 is marked 'penthouse G unit carparking.' A similar sized single space in the location of exclusive use car spaces 58 and 59 (rather than 60 and 61) was marked 'penthouse H unit carparking.' A handwritten annotation says 'Carparking space located against wall or similar obstruction to have a min width of 2775mm. All other carparking spaces to have a min width of 2550mm.' Some (but not all) dimensions are shown in the approved plans.
• [23] When the Building Units and Group Titles Act 1980 (BUGT Act) was enacted, including default by-laws in its third schedule, it applied to Waterways Apartments.
• [24] Amendments to the Waterways Apartments by-laws were recorded in 1986 and 1995 that did not affect exclusive use or car parking.[8] But relevant by-law amendments were recorded in 1994,[9] stated to have been approved by a special resolution passed on 14 October 1994.
• [25] The 1994 by-law amendments repealed the previous by-laws 1 to 41, 47 and the by-laws in the third schedule of the BUGT Act. New By-laws 1 to 58 were recorded and By-law 41A to 46 were renumbered as By-laws 59 to 64. There was no change to the plan of exclusive use areas. The new by-laws most relevantly included:
  1. By-laws 1 and 15 provided (in the same terms) that except pursuant to an exclusive use by-law, proprietors could not park on common property without committee consent.
  2. By-law 16 said those given exclusive use of a car space or spaces could use them for the purpose of car parking only, could not litter on them, could not use them to create a nuisance, and were responsible for the body corporate's maintenance obligations.
  3. By-law 17 made further (and in some cases repeated) provision for exclusive use car spaces. By-law 17.2 said proprietors could use exclusive use car parking spaces for motor vehicle parking and no other purpose. By-law 17.4 said the proprietor was to "...ensure that only one motor vehicle at a time is parked within each of the car parking spaces and then only within the demarked confines of each of the car parking spaces."
• [26] The current Act was enacted in 1997 with application to Waterways Apartments. Pursuant to its transitional provisions,[10] in July 1997 an interim CMS was recorded by the Titles Registry for each scheme already in existence. If the body corporate did not then record a new CMS by 13 July 2000, the interim CMS was automatically recorded as a standard CMS.
• [27] Committee meeting minutes record a resolution in July 1999 to ascertain with solicitors if the latest by-laws had been registered, to obtain a quote to prepare a new CMS, and to obtain advice on whether delineation of the exclusive use areas on the existing plans was adequate for that purpose.[11] Then in October 1999 committee minutes record that a draft CMS had been prepared by the solicitors and the exclusive use areas resurveyed with the exception of an area allocated to Lot 68.[12] The committee resolved to ask the solicitors for a summary of the changes to the CMS and that the surveyors be instructed to amend the plans for the exclusive use areas for Lots 68 and 69 in schedule E.
• [28] A new CMS was recorded on 10 February 2000 (2000 CMS).[13] It was endorsed by the chairperson and secretary on 17 January 2000 and executed by a solicitor for the body corporate on 31 January 2000. The request to record the CMS stated (by handwritten amendments) that it amended the existing CMS "including amendments to Schedules C and E." Schedule C includes the by-laws and schedule E sets out exclusive use allocations.
• [29] Generally, By-laws 1 to 58 appear to be substantively the same as those recorded in 1994. The wording of By-laws 15 and 16 regarding exclusive use car parking is different. Other than number formatting, By-law 17 is unchanged. There are also changes to the by-laws that had been numbered By-laws 59 to 64 in 1994.
• [30] The CMS includes in schedule E a description of exclusive areas allocated to lots pursuant to By-laws 1, 62, 63 and 64.[14] In the first of those lists, Lot 68 is still allocated car space 62 on the attached plan and Lot 69 is allocated car spaces 60 and 61.
• [31] In the plan A included in the 2000 CMS (the current plan), all car spaces appear to be in the same location as the 1977 plan. The current plan is fully dimensioned and was endorsed by a licenced surveyor in August 1999. Pillars are not shown. Individual car spaces range in width from 2.55m to 4.75m and vary in length from 5.3m to 5.8m. Car spaces 60 and 61 are each show as being 2.7m wide and 5.8m long. Car space 62 is marked as being 3.92m wide and 5.8m long. The current plan shows an unallocated strip of common property, of 1.22m wide, between space 62 and the adjacent space 63, which was not shown in the 1977 plan.
• [32] The surveyed dimensions of the basement in the current plan indicate that the limited dimensions in the original plans approved by council were not accurate. For example, the apparent space between the pillars in the location of car spaces 60 and 61 is indicated to be '5 200' but the surveyed car spaces in that location have a combined total of 5.4m. The space between the pillars in the location of the Lot 68 car space is indicated to be '5 200' but the total of car space 62 and the adjacent strip is, on the surveyed measurements, 5.14m.
• [33] A new CMS was recorded in March 2023.[15] Correspondence in the CMS says it was approved at a general meeting on 8 February 2023 to give effect to a resumption of common property by council.[16] It does not appear there were any substantive changes to the by-laws or the exclusive use areas from the 2000 CMS.[17]
• [34] In July 2023 the solicitors for the previous owners contacted the body corporate seeking permission to use the common property next to the car space 62 for car parking. They sought this on an urgent basis because the lot was up for sale. The owners were advised they could submit a motion to the next annual general meeting or seek sufficient owner support to requisition an extraordinary general meeting.
• [35] The applicants became the registered owners of Lot 68 in August 2023. Soon after the applicants sought permission to park two cars in their car space and using the adjacent common property. They were advised of the need to submit a general meeting motion.
• [36] In February 2024 the body corporate issued the applicants with a by-law contravention notice asserting a breach of By-laws 1, 3, 5 and 17. It asserted they were parking a vehicle on the common property next to their exclusive use area and in visitor parking bays, parking two vehicles in a car space, parking outside the lines marked for the car space, ignoring notices about the contraventions, and obstructing access to common property and infrastructure.
• [37] The applicants then asked permission to park on the common area next to their exclusive use area while they were investigating the matter. They claimed that was the practice of the previous lot owners. The committee advised it was outside its authority to approve the applicants to use the space next to their car space as exclusive use and noted the by-law requirement to only park one vehicle in a car space. The applicants' solicitors then asserted an error in the 2000 CMS and that car space 62 had been reduced without the owners' consent.

• [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.[18]
• [39] A body corporate must pass a resolution without dissent to consent to record a new CMS that includes or changes an exclusive use by-law.[19] Also, 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 they vote personally on the resolution.[20]
• [40] Although the legislation has been amended since February 2000, the fundamental requirements for consent to an exclusive use by-law remain.[21]
• [41] I note that under the BUT Act, in force when this building was established, section 3(f) of the first schedule by-laws said a body corporate could grant a proprietor the right to exclusive use and enjoyment of common property, or special privileges in respect of that common property, provided the grant was determinable on reasonable notice unless the body corporate resolved otherwise by ordinary resolution. Furthermore, under section 13(2) of the BUT Act, the first schedule by-laws could only be added to, amended, or appealed by a unanimous resolution. Under the BUGT Act, a resolution without dissent was required to make, amend, add to, or repeal a by-law conferring exclusive use or special privileges over common property.[22]
• [42] Importantly, exclusive use of common property can only be granted or altered by a validly approved CMS. It cannot be acquired by historic usage, even if that usage is not objected to. However, if a clear intention to grant the right to exclusive use over common property can be established, but that intent was not formalised due to some error or oversight, an adjudicator can require a body corporate to correct the error. This is based on the power of an adjudicator to grant relief on equitable grounds,[23] including the doctrine of rectification.[24]

• [43] The applicants assert that the change to exclusive use car space 62 in the 2000 CMS was not authorised because there was no resolution without dissent and no evidence that the owners of Lot 68 at the time consented to the change.
• [44] It cannot be presumed that a CMS is valid or enforceable because it has been recorded.[25] However, the recording of a CMS is prima facie evidence of an intention by the body corporate to adopt its contents. The onus of proof rests with a person alleging a recorded CMS has not been validly authorised, or that any of its contents are invalid.
• [45] Where the 1977 plan was not dimensioned, it could be argued that the current plan merely described car space 62 and the other exclusive use areas more accurately rather than altering their dimensions. If there was no substantive change to the grant of exclusive use, there was no need for the consent of the then owners of Lot 68 to the recording of the new CMS.
• [46] However, the body corporate does not dispute that the dimensions of car space 62 were altered from the 1977 plan to the current plan. If that is accepted, then owner of Lot 68 at the time needed to vote personally on the resolution to record that CMS or consent in writing to it.
• [47] No evidence has been provided that changes to the dimensions of car space 62 between the 1977 plan and the 2000 CMS arose from a mistake.
• [48] The application and submissions include differing recollections from various owners as to how many cars were previously parked in car space 62. The applicants appear to assert that a build up of oil on a painted line means a car has parked over that line. But if two cars were regularly parked in car space 62 (even without objection), that does not constitute evidence the dimensions of the space actually allocated to Lot 68. It could simply mean the occupiers were deliberately or inadvertently parking outside their allocated space.
• [49] Evidence of changes to line markings are of little assistance when there is no evidence as to who painted the original lines or when, and when they were repainted and why. But if the line markings were changed, that implies a deliberate rather than an inadvertent change. And if previous owners of Lot 68 were not aware of the change to car space 62 in the CMS, it must be asked why they did not question a line (particularly if it was changed) painted through the area. Also, the applicants' photographs indicate that the line at the front of the space changed but the applicants do not suggest the dimension at the front is incorrect.
• [50] There is speculation that the height of the car space was the reason for truncating car space 62, but no evidence is provided that was the intent of the body corporate or its surveyor.
• [51] However, it does seem unlikely that any change to the dimensions of car space 62 in 2000 was inadvertent when committee minutes in October 1999 expressly refer to instructing the surveyors to amend the exclusive use plans for the areas allocated to Lots 68 and 69.
• [52] I consider then the substantive question is whether the required consent to record the 2000 CMS existed.
• [53] The applicants say the body corporate has not provided evidence of the consent from the then owners of Lot 68 to the change. But it is the applicants who bear the onus of proof.
• [54] The body corporate says it has no meeting minutes from 1997 to 2003. So there are no minutes of a general meeting approving the recording of the 2000 CMS and no owner consent to change car space 62 held in the body corporate's records.
• [55] Minutes of a general meeting, associated general meeting material, and correspondence are records a body corporate must keep, subject to provisions permitting their disposal.[26] Correspondence of no significance or continuing interest (which could include correspondence from an owner consenting to change their exclusive use area after a new CMS to reflect that change has been recorded) and some associated general meeting material (including voting tally sheets) can be disposed after 2 years.[27] But general meeting minutes must be retained.
• [56] Although individuals may have kept some records, such as the committee minutes of July and October 1999, the applicants do not establish that the body corporate does have records for the relevant period. The loss of records for some 6 years is certainly inappropriate. It may be unusual for a scheme of this size, but it is not unheard of particularly with changes of managers. The applicants have not established any nefarious reason for the lack of records.
• [57] But I do not consider the absence of records for the relevant period necessarily means the body corporate did not resolve to record the 2000 CMS in which the then owner of Lot 68 voted, or that the owner did not consent to the CMS if they did not vote. It can simply mean relevant records were lost or disposed of in the incorrect belief they were no longer required.
• [58] The owner of Lot 68 at the time the CMS was recorded in 2000 was an owner as a joint tenant since July 1995 and then solely since July 1997. The lot was transferred to new owners (who subsequently transferred the lot to the applicants) in November 2001. The applicants provide no evidence that the owner at the time did not consent to the 2000 CMS or vote in favour of it, or that they or the subsequent owners challenged the CMS.
• [59] There is also no evidence that the validity of the 2000 CMS has been challenged for 25 years. In a previous application an owner sought in 2016 to invalidate By-law 63 as being contrary to the Act, in the context of a dispute about the approval enclosure of Lot 69's car spaces. It appears all owners were invited to respond to that application. It was dismissed.[28] It is not apparent that the validity of the consent to the CMS was questioned in that matter.
• [60] The body corporate is prima facie entitled to rely on the CMS recorded in 2000, and the existence of a valid resolution to record that CMS. Lot 68 changed ownership twice after the 2000 CMS was recorded, a new CMS was apparently voted on by owners in 2023, the former owners asked about acquiring exclusive use of the area next to car space 62 in mid-2023, and the line markings on car space 62 appear to reflect the area allocated in the CMS. Given those circumstances, I find it difficult to accept that the former owners of Lot 68 were not aware of the contents of the CMS and the terms and dimensions of their exclusive use allocation.
• [61] The applicants have provided speculation, but no cogent evidence, that the 2000 CMS was not validly consented to. Although I acknowledge the difficulty where records have not been retained, I am not satisfied I have sufficient evidence to invalidate the CMS or the exclusive use car space allocations in the current plan.

• [62] The applicants similarly argue that By-law 17 cannot regulate the exclusive use car spaces because the body corporate did not pass a resolution without dissent or obtain the consent of owners in writing to the by-law. Accordingly, the applicants assert that By-law 17 cannot be used to prevent them parking more than one vehicle in car space 62.
• [63] Given my findings above, it is not clear that two vehicles could fit in car space 62 without using the adjacent strip of unallocated common property. Notwithstanding that, I will consider this.
• [64] The original version of By-law 17 which purports to regulate the number of vehicles that can be parked in a car space was recorded 1994. Where the by-law purported to alter the grant of exclusive use by changing the conditions applying to the use of the space, I agree that a resolution without dissent was required at that time. The titles record of the by-law amendments states that a special resolution was relied on to record the by-law amendments. That was insufficient to include By-law 17. The body corporate acknowledges this. I similarly consider that resolution was insufficient to record By-law 15 and 16 which also purported to set rights and obligations regarding exclusive use car parking.
• [65] However, the lack of authority to record the by-law in 1994 is immaterial to the validity of the current by-laws if they were validly recorded by a resolution without dissent in 2000 and with the consent of owners with exclusive use if they did not vote personally on the motion.
• [66] The 2000 CMS did not simply adopt the by-laws relating to exclusive use car parking that were inadequately approved in 1994. The parties accept there were changes to the dimensions of the exclusive use car spaces in the 2000 CMS. And while there was no substantive change to By-law 17 in the 2000 CMS, there were substantive changes to By-laws 15 and 16 regarding exclusive use car spaces. Necessarily, the entirety of the changes relating to exclusive use car parking required a resolution without dissent or the consent of the affected owners before the 2000 CMS could be recorded.
• [67] There is no evidence of a general meeting resolution or the consent of owners before the 2000 CMS was recorded. But conversely there is no evidence it was not consented to. As discussed above, the recording of the 2000 CMS was not challenged for some 25 years. Despite the absence of records, I am not satisfied the applicants have substantiated that the 2000 CMS was not properly consented to at the time.

• [68] The applicants have also asserted that the proper allocation to Lot 68 was exclusive use of two car spaces and so they should be allowed to park two cars in space 62. There is a question then as to how many car spaces were ever allocated to Lot 68.
• [69] I do not consider the size or dimensions of car space 62 is relevant to the question of the number of car spaces allocated. Similarly, how many vehicles have previously been parked there, how many vehicles could fit in the space, or how many vehicles the applicants want to park, is not relevant. It is also not relevant how many car spaces any previous owner of Lot 68 or their selling agent advertised were included with the lot.[29] And the current or previous line markings in the car park area are not determinative of the areas allocated for exclusive use or the number of those areas.
• [70] I am satisfied on the submitted material and titles records that Lot 68 has only ever been allocated one exclusive use car space, being car space 62. The 1977 plan and the original by-laws clearly only refer to a single space and that language and space numbering has not changed. There appears to have always been a distinction between the allocations to Lot 68 and Lot 69. Lot 69 which has always been allocated 2 numbered car spaces and Lot 68 has always been allocated 1 numbered space. The applicant has not provided cogent evidence to displace what has always been recorded as allocated.

• [71] The applicants have not evidenced that the CMS recorded in 2000, including the plan of exclusive use car space 62 and By-law 17, was not properly consented to at the time. In the absence of cogent evidence, the applicants have not established sufficient basis for an adjudicator to intervene to invalidate any elements of that CMS after 25 years. It follows that I have dismissed the application.
• [72] If the applicants seek to amend their exclusive use area, to increase the dimensions shown in the current plan of exclusive use or to designate it as two car spaces, it is open to them to submit a motion seeking a resolution without dissent to the body corporate.

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

[7] Recorded 23 June 1997, Titles dealing number 601220547

[8] Amendments were recorded on 15 December 1986 (dealing number 601220548) and 30 November 1995 (dealing number 701032241)

[9] Recorded 28 October 1994, Titles dealing number 700312962

[11] A copy of these minutes is included in the application, and an extract is in one owner's submission.

[12] An extract of the minutes of this meeting is included in an owner submission.

[14] Although referring to By-law 1, it is actually By-law 15 that provides for exclusive use car parking.

[15] Recorded 15 March 2023, Titles dealing number 722347942

[16] The parties have not provided minutes of that meeting.

[17] Documentation in the CMS indicates it was recorded because of a council resumption of a portion of common property.

[21] Section 134(3) of the Act as in force from 30 April 1999 to 7 March 2000

[23] Body Corporate for Palm Springs Residences v J Patterson Holdings Pty Ltd [2008] QDC 300

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

[25] Section 115L(2) of the Land Title Act 1994

[26] Section 231(1) of the Standard Module

[27] Section 231(3) of the Standard Module

[28] Waterways Apartments [2017] QBCCMCmr 67

[29] If the applicants believe they were provided incorrect information by the seller or the selling agent, that would be a matter they would need to pursue separately.