Paloma [2000] QBCCMCmr 109 (29 February 2000)

RA MeekREFERENCE: 0081-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9524
Name of Scheme:	Paloma
Address of Scheme:	93-97 Albatross Avenue MERMAID BEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Bruce Ronald McKay, the co-owner of lot 9



RA MeekI hereby order that the application by Bruce Ronald McKay, the co-owner of lot 9, for an interim order to declare invalid the proposed EGM of Paloma called for Friday 3 March 2000, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0081-2000

“Paloma” CMS 9524

The applicant Bruce Ronald McKay, the co-owner of lot 9, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That an interim order be issued to declare invalid the proposed EGM of Paloma ... on Friday 3 March 2000.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that –

The application is made to declare invalid the proposed EGM 3 March of Paloma ... as the result of the issue of a notice of meeting with the agenda and motions to be considered. Despite being a requested EGM, there was no consultation or notice to the committee of such an agenda / notice being prepared and distributed. ...

Previously written advice was received from the Commissioner’s Office ...of the requirement that the committee must prepare the agenda for each general meeting. Therefore it is proposed at a committee meeting scheduled for Monday 28 February 2000 to prepare an expanded agenda for an alternative EGM for Palmona to be held on Friday 24 March 2000.

The secretary has advised that the proposed EGM meeting of 3 March 2000 could go ahead, so therefore, this interim order is sought to declare the proposed meeting to be invalid under section 45(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

As the respondent named in the application was the body corporate, this office sought a submission to the interim order from the committee. Four out of five members of the committee responded that they fully supported the application. The submission is signed by four members of the committee, namely the applicant, and John O’Connor, Helen Kable and Nannette Blair (the other committee members).

It is only when one looks at the agenda of the meeting proposed to be declared invalid that the reason for the committee’s support of the application becomes clear. There are 9 motions on the agenda. The meeting is a requisitioned meeting pursuant to section 61 of the standard module. The meeting has been requested by the owners of lots 2, 4, 7, 8, 10, 11 and 12 (the owners) and all of the motions, excluding the first to confirm the minutes of the previous meeting, have been requested for inclusion by the owners.

Motions 3 to 6 propose that the position of the chairperson, and the other committee members, be declared vacant. There are three other motions submitted headed Appointment of solutions in Engineering, Sinking Fund Budget, and Solutions in Engineering – Schedule of Works.

Section 25(2)(f) provides that a committee member’s position becomes vacant if the member is removed from office by ordinary resolution of the body corporate.

The applicant’s rely on section 45(1), which provides -

45.(1) The committee must prepare an agenda for each general meeting.

The applicant alleges that the agenda was prepared by the body corporate management firm of which the secretary is a member. Allan Johanson of Body Corporate Services has acknowledged that he prepared the agenda, and not the committee. Mr Johanson further states in his letter that –

Therefore, so that no owner is disadvantaged the committee propose to forward a new EGM agenda following the committee meeting to be held on 28 February 2000, which will include those motions already contained in the EGM agenda you recently received.

It seems to me that this meeting to be held on 3 March 2000 has been called pursuant to the provisions of section 61 of the standard module, pursuant to which 25% of owners might requisition that an EGM be called, and that it consider certain motions. Section 61 provides that -


61.(1) An extraordinary general meeting (a “requested extraordinary
general meeting”) of the body corporate must be called if a notice asking
for an extraordinary general meeting to consider and decide motions
proposed in the notice is—
(a) signed by or for the owners of at least 25% of all the lots included
in the scheme; and
(b) given to the secretary or, in the secretary’s absence, the
chairperson or, if the committee has not yet been chosen, given to
the original owner.
(2) The secretary may be presumed to be absent if a notice is given to the
secretary at the address for service of the body corporate, and no reply is
received within 7 days.
(3) A requested extraordinary general meeting must be called and held
within 6 weeks after the notice asking for the meeting is given.
(4) A requested extraordinary general meeting of the body corporate may
be called even though the body corporate’s first annual general meeting has
not yet been held.

I have not been provided with a copy of the requisition, however I consider it reasonable to presume, based on the voting paper, that it was submitted by 7 of the 12 owners in the scheme, well over the requirement of 25% of owners. Moreover section 61 provides that an EGM must be convened if the requisition is given by at least 25% of owners. The responsibility to call a meeting falls, in the first instance, on the secretary (see section 40).

It is my view that section 45 of the standard module, on which the applicant relies, should be read subject to the more specific provisions of section 61 which requires that a meeting be called if requisitioned by more that 25% of owners.

In the circumstances, I intend to dismiss this application, and to allow the meeting to proceed. I consider that, given the motions requisitioned for inclusion on the agenda of the meeting, the current members of the committee excluding the secretary have a clear conflict of interest (see section 34) in acting as a committee to prepare the agenda of the meeting. I consider that in the circumstances, it is best that the meeting be allowed to proceed. No motion, excepting the standard approval of minutes motion, has been included on the agenda which was not requisitioned for inclusion by more than 25% of owners. Given this, I find that the secretary, or at least an employee of the body corporate management firm employed by this body corporate, has simply acted in compliance with the specific requirements of section 61 of the standard module. I find no illegality in this, and therefore intend to dismiss this application.

As no final order to this application was sought, and as this order is final in its determination of the issues raised by the applicant, I do not intend to make any further or final order to this application. If the applicant is sufficiently aggrieved by this interim order, then the applicant should consider his rights of appeal in respect of this order.