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

5KIPGFD[#WUV.++

         [41]   Minutes of the Annual General Meeting (AGM) of 19 April 2011 show Motion 14 unanimously
                resolved to discontinue the current water cooling air-conditioning system and install an
                individual system for each lot, with ownership of the individual systems to be transferred to
                each lot owners. The motion selected the first of three alternative contractors for the work.
                The minutes note that “The work will be conducted on the lower levels as the first measure as
                these levels were draining the system the most and further levels will be reviewed as per the
                staged works by the contractor.” Neither applicant voted in respect of the AGM.
         [42]   In regard to the rental of QPCU exclusive use car spaces, the application queries: whether
                there was compliance with the legislation in respect of the purported transfer of exclusive use
                of common property to QPCU, and whether QPCU is entitled to collect rent on the common
                property transferred to it for exclusive use without a resolution to support that and without a
                requirement to account to the Body Corporate for the money received. Reference is made to
                section 117 of the Commercial Module. The applicants assert there is no resolution authorising
                QPCU to rent out common property and the statutory requirements have not been met.
         [43]   In December 2008 the second respondent wrote to QPCU noting that QPCU let at least 18 car
                spaces over some years at a rent totalling at least $4,800 a year. It stated that QPCU was
                required to pay that rent to the Body Corporate. QPCU responded that it was allocated car
                spaces under By-law 30 and there is no provision in the by-law requiring a payment.
         [44]   With respect to the ATM issue the applicants indicate the ATM was previously located on
                QPCU property but has since been moved onto common property (possibly as part of the
                refurbishment of the QPCU premises) without any ‘commercial offer’ to the Body Corporate. It
                wants QPCU to enter into a lease regarding the ATM, and be responsible for electricity,
                maintenance and reinstatement costs relating to the ATM.
         [45]   The submissions from the Body Corporate include the following:
                    a. The applicants have not established a dispute with QPCU as there was no internal
                       dispute resolution or conciliation attempted before seeking orders against QPCU. No
                       motions were submitted to the Body Corporate seeking to resolve the issues.
                    b. The Body Corporate has no dispute with the QPCU regarding the issues raised.
                    c. The application is generally misleading as it confuses QPCU with the Body Corporate.
                    d. Subject to any local authority requirements there is no restriction on an owner receiving
                       rent for the use of an exclusive use area allocated to that owner under By-law 30.
                       There are no conditions in By-law 30 to prohibit renting or require payments.
                    e. There is no evidence that the current contribution and interest schedule lot entitlements
                       for Lot 3 do not take into account the exclusive use car parks allocated to Lot 3. In any
                       event an adjudicator does not have jurisdiction to adjust lot entitlements. The
                       applicants can submit a motion to a general meeting to adjust the lot entitlements.
                    f. Section 117 of the Commercial Module is irrelevant because it regulates the manner in
                       which the body corporate can sell or lease common property, and not how an owner
                       can deal with common property allocated to them under an exclusive use by-law.
                    g. If the QPCU was improperly deriving rent from common property, a dispute on that
                       matter could only be pursued by the Body Corporate.
                    h. The building has a central cooling tower which provides ducted air-conditioning to all
                       lots. It was responsible for the cooling tower and associated infrastructure, as utility
                       infrastructure, with owners responsible for ducting and other infrastructure within the
                       boundaries of their lots including the individual air-conditioning unit that services only
                       their lot. It investigated alternatives to upgrade the defective and inefficient system and
                       resolved the best option was to replace the cooling tower with individual split systems.
                    i. The application infers the air-conditioning upgrade is solely for the benefit of QPCU.
                       The air-conditioning contractors recommended that stage one of the works commence
                       at level 1 as that level had the biggest footprint and was furthest from the cooling tower,
                       and so drew the biggest load from the system. Consequently, that approach would
                       lessen the load on the existing system while the refurbishment continued.


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4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                           8GTKH[XGTUKQP


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Signed by AustLll

(41) Minutes of the Annual General Meeting (AGM) of 19 April 2011 show Motion 14 unanimously
resolved to discontinue the current water cooling air-conditioning system and install an
individual system for each lot, with ownership of the individual systems to be transferred to
each lot owners. The motion selected the first of three alternative contractors for the work.
The minutes note that “The work wil be conducted on the lower levels as the first measure as
these levels were draining the system the most and further levels will be reviewed as per the
staged works by the contractor.” Neither applicant voted in respect of the AGM.

(42) In regard to the rental of QPCU exclusive use car spaces, the application queries: whether
there was compliance with the legislation in respect of the purported transfer of exclusive use
of common property to QPCU, and whether QPCU is entitled to collect rent on the common
property transferred to it for exclusive use without a resolution to support that and without a
requirement to account to the Body Corporate for the money received. Reference is made to
section 117 of the Commercial Module. The applicants assert there is no resolution authorising
QPCU to rent out common property and the statutory requirements have not been met.

 

143] In December 2008 the second respondent wrote to QPCU noting that QPCU let at least 18 car
spaces over some years at a rent totalling at least $4,800 a year. It stated that QPCU was
required to pay that rent to the Body Corporate. QPCU responded that it was allocated car
spaces under By-law 30 and there is no provision in the by-law requiring a payment.

(44) With respect to the ATM issue the applicants indicate the ATM was previously located on
QPCU property but has since been moved onto common property (possibly as part of the
refurbishment of the QPCU premises) without any ‘commercial offer’ to the Body Corporate. It
wants QPCU to enter into a lease regarding the ATM, and be responsible for electricity,
maintenance and reinstatement costs relating to the ATM.

(45) The submissions from the Body Corporate include the following:

a. The applicants have not established a dispute with QPCU as there was no internal
dispute resolution or conciliation attempted before seeking orders against QPCU. No
motions were submitted to the Body Corporate seeking to resolve the issues.

b. The Body Corporate has no dispute with the QPCU regarding the issues raised.
The application is generally misleading as it confuses QPCU with the Body Corporate.

d. Subject to any local authority requirements there is no restriction on an owner receiving
rent for the use of an exclusive use area allocated to that owner under By-law 30.
There are no conditions in By-law 30 to prohibit renting or require payments.

e. There is no evidence that the current contribution and interest schedule lot entitlements
for Lot 3 do not take into account the exclusive use car parks allocated to Lot 3. In-any
event an adjudicator does not have jurisdiction to adjust lot entitlements. The
applicants can submit a motion to a general meeting to adjust the lot entitlements:

f. Section 117 of the Commercial Module is irrelevant because it regulates the manner in
which the body corporate can sell or lease common property, and not how an owner
can deal with common property allocated to them under an exclusive use by-law.

g. If the QPCU was improperly deriving rent from common property, a dispute on that
matter could only be pursued by the Body Corporate.

h. The building has a central cooling tower which provides ducted air-conditioning to all
lots. It was responsible for the cooling tower and associated infrastructure, as utility
infrastructure, with owners responsible for ducting and other infrastructure within the
boundaries of their lots including the individual air-conditioning unit that services only
their lot. It investigated alternatives to upgrade the defective and inefficient system and
resolved the best option was to replace the cooling tower with individual split systems.

i. The application infers the air-conditioning upgrade is solely for the benefit of QPCU.
The air-conditioning contractors recommended that stage one of the works commence
at level 1 as that level had the biggest footprint and was furthest from the cooling tower,
and so drew the biggest load from the system. Consequently, that approach would
lessen the load on the existing system while the refurbishment continued.

oO

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Retrieved from AustLII on 30 March 2020 at 16:27:59 Verify version