20181085-ASC11 - North Point Brisbane [2012] QBCCMCmr 355

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         [107]   Reference is made by the applicants to section 117 of the Commercial Module which provides
                 for the leasing and licensing common property. However this section only applies to how the
                 body corporate may deal with common property and is not applicable to a lot owner or occupier
                 dealing with their exclusive use area.
         [108]   The rights under an exclusive use by-law attach to the lot and benefit the occupier of the lot for
                 the time being. Under section 180(4) of the Act an owner cannot be prevented from leasing or
                 otherwise dealing with their lot, and arguably this extends to the rights that attach to the lot.
         [109]   An exclusive use by-law could potentially include a restriction on the leasing of the exclusive
                 use areas (providing there was reasonable justification for those restrictions 27). However there
                 are no such conditions in By-law 30. Moreover By-law 30 specifically provides that an
                 exclusive use car park area is for the use of the lot owner and occupier “for themselves and
                 their licensees”. This appears to specifically permit the use of the car spaces by third parties
                 under a lease or licence. In my view then, QPCU is free to use and enjoy its allocated areas of
                 common property for its benefit, subject only to any limitations in the legislation (for example, in
                 making improvements).
         [110]   There are similarly no legislative provisions that automatically oblige a lot owner or occupier to
                 give the body corporate any income generated from their exclusive use area or otherwise
                 account for that income. While such an obligation could be included as a condition in the by-
                 law, clearly there is no such condition in By-law 30 and no requirement for its inclusion.
         [111]   In my view the applicants have misconceived the application of the legislation in this regard.
               ATM issue
         [112] The applicants have raised concerns that QPCU has installed an ATM in the foyer on common
               property without any resolution or accounting to the Body Corporate. The applicants make
               reference to converting common property to exclusive use and rental income without
               ‘accounting’ to the Body Corporate.
         [113]   Pursuant to section 120 of the Commercial Module, a body corporate is entitled to authorise a
                 lot owner to make an improvement to common property for the benefit of that owner’s lot. The
                 body corporate is permitted to impose conditions on that approval that it considers appropriate,
                 but is not legally obliged to do so. Unless it is a restricted issue for the Committee28, the
                 Committee is entitled to make decisions under section 120 of the Commercial Module.
         [114]   The Body Corporate says it approved the installation of the ATM on common property. A
                 resolution passed outside a committee meeting on 17 June 2011 records the approval of the
                 relocation of the ATM at the expense of QPSU. The record of the resolution does not indicate
                 that the Body Corporate imposed any conditions on the consent, such as the payment of rent
                 or maintenance or reinstatement obligations.
         [115]   If the applicants believe the Committee was not entitled to pass a resolution approving the
                 installation of the ATM, or that the grant of approval without the imposition of conditions was
                 unreasonable, their dispute is properly with the Body Corporate rather than QPCU. But the
                 applicants have not sought an order against the Body Corporate on this issue, whether to
                 dispute the approval given for the installation or for any other reason.
         [116]   If the Body Corporate had resolved to grant a lease or license over the area of common
                 property to QPCU a resolution without dissent would have been required for a term of more
                 than 10 years and otherwise a special resolution would be required. The applicants have not
                 presented specific evidence to support a claim that the installation of the ATM amounts to a
                 disposition of common property that requires a lease or license, rather than simply being an
                 improvement to common property under section 120 of the Commercial Module. There may
                 be some conjecture on that point29. However that question could only be considered in the
                 context of an application seeking orders against the Body Corporate on that point.

         27
            Pursuant to section 94(2) of the Act a body corporate must act reasonably in regard to its functions.
         28
            Section 18 of the Commercial Module
         29
            See Katsik alis v Body Corporate for “The Centre” [2009]QCA 77


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(107) Reference is made by the applicants to section 117 of the Commercial Module which provides
for the leasing and licensing common property. However this section only applies to how the
body corporate may deal with common property and is not applicable to a lot owner or occupier
dealing with their exclusive use area.

(108) The rights under an exclusive use by-law attach to the lot and benefit the occupier of the lot for
the time being. Under section 180(4) of the Act an owner cannot be prevented from leasing or
otherwise dealing with their lot, and arguably this extends to the rights that attach to the lot.

(1091 An exclusive use by-law could potentially include a restriction on the ions”) of the exclusive
use areas (providing there was reasonable justification for those restrictions”’). However there
are no such conditions in By-law 30. Moreover By-law 30 specifically wks that an
exclusive use car park area is for the use of the lot owner and occupier “for themselves and
their licensees”. This appears to specifically permit the use of the car spaces by third parties
under a lease or licence. In my view then, QPCU is free to use and enjoy its allocated areas of
common property for its benefit, subject only to any limitations in the legislation (for example, in
making improvements).

(119) There are similarly no legislative provisions that automatically oblige a lot owner or occupier to
give the body corporate any income generated from their exclusive use area or otherwise
account for that income. While such an obligation could be included as a condition in the by-
law, clearly there is no such condition in By-law 30 and no requirement for its inclusion.

(111) In my view the applicants have misconceived the application of the legislation in this regard.

ATM issue

112] The applicants have raised concerns that QPCU has installed an ATM in the foyer on common
property without any resolution or accounting to the Body Corporate. The applicants make
reference to converting common property to exclusive use and rental income without
‘accounting’ to the Body Corporate.

(113] Pursuant to section 120 of the Commercial Module, a body corporate is entitled to authorise a
lot owner to make an improvement to common property for the benefit of that owner’s lot. The
body corporate is permitted to impose conditions on that approval that it considers appropriate,
but is not legally obliged to do so. Unless it is a restricted issue for the Committee”, the
Committee is entitled to make decisions under section 120 of the Commercial Module.

(1141 The Body Corporate says it approved the installation of the ATM on common property. A
resolution passed outside a committee meeting on 17 June 2011 records the approval of the
relocation of the ATM at the expense of QPSU. The record of the resolution does not indicate
that the Body Corporate imposed any conditions on the consent, such as the payment of rent
or maintenance or reinstatement obligations.

(115) If the applicants believe the Committee was not entitled to pass a resolution approving the
installation of the ATM, or that the grant of approval without the imposition of conditions was
unreasonable, their dispute is properly with the Body Corporate rather than QPCU. But the
applicants have not sought an order against the Body Corporate on this issue, whether to
dispute the approval given for the installation or for any other reason.

(116) If the Body Corporate had resolved to grant a lease or license over the area of common
property to QPCU a resolution without dissent would have been required for a term of more
than 10 years and otherwise a special resolution would be required. The applicants have not
presented specific evidence to support a claim that the installation of the ATM amounts to a
disposition of common property that requires a lease or license, rather than simply being an
improvement to common property under section 120 of the Commercial Module. There may
be some conjecture on that point”®. However that question could only be considered in the
context of an application seeking orders against the Body Corporate on that point.

7 Pursuant to section 94(2) of the Act a body corporate must act reasonably in regard to its functions.
® Section 18 of the Commercial Module

° See Katsikalis v Body Corporate for “The Centre” [2009]QCA 77

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