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

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                    j. There is no evidence that any of the resolutions will cause the Body Corporate to
                       become insolvent. The budgets approved by the Body Corporate have taken into
                       account the proposed cost of the air-conditioning works approved.
                    k. The Committee approved the installation of the ATM on 17 June 2011 pursuant to
                       section 120 of the Commercial Module.
                    l. Because of the amendments of the applicant, the respondent has been requested to
                       make submissions in response to this application on five occasions. The applicants’
                       further submissions are “…voluminous, repetitive, unsystematic, emotive, without
                       substance and misconceived”. The application should be dismissed and the maximum
                       costs awarded under section 270(4) of the Act.
         [46]   The submission from QPCU supports the submission from the Body Corporate.
         [47]   The submission from a lot owner expresses concern regarding the lack of discussion and
                attempts to mediate this dispute, and the impacts on the scheme if the dispute is not resolved
                quickly. Specifically the owner says:
                    a. He queries whether Body Corporate approval for the ATM was obtained and if so
                       whether compensation was paid for the loss of amenity. There is a further query as to
                       why the ATM was moved from its previous location.
                    b. Although not aesthetically pleasing, the ATM does offer a service and amenity to other
                       occupants and the public and is therefore a worthwhile addition.
                    c. He recommends communication between QPCU and minority owners who consider the
                       ATM service does not offset its location. It could propose monetary compensation.
                    d. The current air-conditioning system is outmoded, inefficient and costly. The Body
                       Corporate resolved some time ago to replace it from the sinking fund. The Body
                       Corporate apparently identified cost savings if the first stage of the air-conditioning
                       upgrade occurred at the same time as the QPCU refurbishment. The cost of that first
                       stage will deplete the sinking fund.
                    e. Some owners believe QPCU used its majority to access Body Corporate funds for its
                       own internal air-conditioning. Over time all lots will be upgraded to the new system,
                       although there is a concern QPCU might not commit to the remainder of the upgrade. It
                       may there is a need for better communication between QPCU, the Body Corporate and
                       minority owners, and for QPCU to commit to the remaining air-conditioning works.
                    f. The upper basement is allocated to QPCU but some spaces are leased to other
                       occupants. Some assert QPCU used its voting block to gain the benefit of this area of
                       common property. If QPCU has no more that the number of car spaces allocated to its
                       unit entitlement as other owners, it has not gained a financial advantage and should not
                       be required to pay rent for car spaces. The Body Corporate should engage an
                       independent valuer/assessor to audit the car spaces in the building based on total area
                       entitlement to determine if irregularities exist.
         [48]   The submission from another lot owner supports the application, and particularly the placement
                of the ATM in the foyer without compensation.
         [49]   The applicants’ replies to submissions includes the following additional arguments:
                    a. The exclusive use by-law does not and was never intended to permit QPCU to collect
                       rent on car parks, and it does not have that effect by its terms.
                    b. The by-law does not comply with section 30(7) of the old Act. It does not and was not
                       intended to limit access across common property by lot owners or their invitees.
                    c. The claimed effect of the by-law is prohibited by section 177 of the Act, as it cannot give
                       rights to utility infrastructure that is common property or a body corporate asset.
                    d. Section 154 of the Act does not authorise QPCU to install an ATM on common property
                       without complying with section 117 of the Commercial Module. There has been no
                       resolution without dissent or special resolution regarding the ATM. There is no
                       provision within the CMS for a lease or license in regard to the ATM.



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


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Signed by AustLll

j. There is no evidence that any of the resolutions will cause the Body Corporate to
become insolvent. The budgets approved by the Body Corporate have taken into
account the proposed cost of the air-conditioning works approved.

k. The Committee approved the installation of the ATM on 17 June 2011 pursuant to
section 120 of the Commercial Module.

|. Because of the amendments of the applicant, the respondent has been requested to
make submissions in response to this application on five occasions. The applicants’
further submissions are “...voluminous, repetitive, unsystematic, emotive, without
substance and misconceived”. The application should be dismissed and the maximum
costs awarded under section 270(4) of the Act.

[48] The submission from QPCU supports the submission from the Body Corporate.

(477 The submission from a lot owner expresses concern regarding the lack of discussion and
attempts to mediate this dispute, and the impacts on the scheme if the dispute is not resolved
quickly. Specifically the owner says:

a. He queries whether Body Corporate approval for the ATM was obtained and if so
whether compensation was paid for the loss of amenity. There is a further query as to
why the ATM was moved from its previous location.

b. Although not aesthetically pleasing, the ATM does offer a service and amenity to other
occupants and the public and is therefore a worthwhile addition.

c.. He recommends communication between QPCU and minority owners who consider the
ATM service does not offset its location. It could propose monetary compensation.

d. The current air-conditioning system is outmoded, inefficient and costly. The Body
Corporate resolved some time ago to replace it from the sinking fund. The Body
Corporate apparently identified cost savings if the first stage of the air-conditioning
upgrade occurred at the same time as the QPCU refurbishment. The cost of that first
stage will deplete the sinking fund.

e. Some owners believe QPCU used its majority to access Body Corporate funds for its
own internal air-conditioning. Over time all lots will be upgraded to the new system,
although there is a concern QPCU might not commit to the remainder of the upgrade. It
may there is a need for better communication between QPCU, the Body Corporate and
minority owners, and for QPCU to commit to the remaining air-conditioning works.

f. The upper basement is allocated to QPCU but some spaces are leased to other
occupants. Some assert QPCU used its voting block to gain the benefit of this area of
common property. If QPCU has no more that the number of car spaces allocated to its
unit entitlement as other owners, it has not gained a financial advantage and should not
be required to pay rent for car spaces. The Body Corporate should engage an
independent valuer/assessor to audit the car spaces in the building based on total area
entitlement to determine if irregularities exist.

[48] The submission from another lot owner supports the application, and particularly the placement
of the ATM in the foyer without compensation.

(49] The applicants’ replies to submissions includes the following additional arguments:
a. The exclusive use by-law does not and was never intended to permit QPCU to collect
rent on car parks, and it does not have that effect by its terms.

b. The by-law does not comply with section 30(7) of the old Act. It does not and was not
intended to limit access across common property by lot owners or their invitees.

c. The claimed effect of the by-law is prohibited by section 177 of the Act, as it cannot give
rights to utility infrastructure that is common property or a body corporate asset.

d. Section 154 of the Act does not authorise QPCU to install an ATM on common property
without complying with section 117 of the Commercial Module. There has been no
resolution without dissent or special resolution regarding the ATM. There is no
provision within the CMS for a lease or license in regard to the ATM.

Page 7 of 16
Retrieved from AustLII on 30 March 2020 at 16:27:59 Verify version