Elder Place [2000] QBCCMCmr 15 (18 January 2000)

RA MeekREFERENCE: 0599-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21635
Name of Scheme:	Elder Place
Address of Scheme:	18 Fort Street Buderim QLD 4556

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

William John Guy, the owner of lot 12

RA MeekI hereby order that the application by the owner of lot 12, William John Guy, for an order that the AGM of 25^th September 1999 not being held in accordance with the Standard Module Regulations to the Body Corporate and Community Management Act 1997 is invalid, is dismissed. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0599-1999

“Elder Place” CTS 21635

The applicant, William John Guy, the owner of lot 12, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order that the AGM 25^th September 1999 not being held in accordance with the Standard Module Regulations to the Body Corporate and Community Management Act 1997 is invalid.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). 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 –

An AGM must be held in accordance with the Standard Module and under the regulatory requirements s.39 to 45 and 60 and 61 also s.46 to 59 for the requirement of holding a general meeting ... as per AGM notified agenda and s49 is of the standard module regulations. ...

Although the body corporate manager notified of illegality, he brought his solicitor friend (not the body corporate solicitor) to the meeting and advised those present to take standard regulations as read although the meeting was improperly constituted and called under the accommodations module regulations. ...

Whilst the applicant’s grounds are badly explained, essentially he is alleging that the AGM of the body corporate held on 25^th September 1999 (the meeting) was convened and held under the Accommodation Module Regulation. That this is not the applicable regulation module for this scheme; rather it is the Standard Module Regulation. That consequently the meeting is invalid, and a new AGM should be ordered to be convened.

The body corporate manager has responded to the application by way of submission. In that submission the manager states –

The notice of AGM was called in accordance with the Standard Module Regulation to the Act. ... Unfortunately, prior to the meeting, we were not aware that a typing error appeared on the attached voting paper ie. when quoting the relevant section of the Act, reference was made to the Accommodation Module where it should have referred to the Standard Module.

On declaring the meeting open, the chairperson ... was challenged by (the applicant) that the meeting was in fact invalid as the meeting had been called under the wrong module. (The manager) apologised for the error and explained that while the motions did refer to the accommodation module the meeting had been called correctly in accordance with the standard module in the notice of meeting attached to the agenda.

The chairperson then offered the meeting the opportunity to proceed with the meeting in the light of the explanation given ... or that the meeting be reconvened to a date to be determined. The relevant references would be corrected in the minutes of the meeting.

The meeting voted 9 in favour and Mr Guy voted against the meeting proceeding. There were 10 lots out of a total 12 represented at the meeting. The meeting then proceeded and this decision was noted accordingly on the first page of the minutes of the meeting.

The minutes of meeting note as follow –

The meeting noted that the formal Notice of AGM of the body corporate forwarded to owners on the 26^th August 1999 had been prepared in accordance with the standard module regulation to the Act, however it was noted that a typing error had occurred on the agenda which referred to the Accommodation Module instead of the Standard Module. It was resolved that the meeting proceed at this juncture and the minutes of the meeting would correct this. This was accepted by the body corporate meeting.

Voting Yes(9) No(1) Abstain(-) Mr Guy voted against the meeting proceeding.

In a submission to this office (which the applicant was instructed to distribute a copy to all owners), the applicant further stated –

It is suggested that the manager set up the AGM on accommodation module and regulations (not a typing error) as the manager expected to substitute this module for standard. The accommodation module was still proposed for in the future see notes motion 11 in minutes.

Motion 11 resolved that the body corporate authorise the committee to review the current by-laws. The note to the motion provides in part that the Act gives the body corporate the opportunity to review the existing by-laws and regulation module most suitable to the body corporate and where necessary, prepare and lodge these changes in a new CMS.

Motion 11 is not an attempt to change the applicable regulation module. Rather it is an authorisation to review the by-laws. In all, I find no evidence of the conspiracy which the applicant is alleging. Clearly all parties acknowledge that the regulation module applying to this scheme is the standard and not the accommodation module. I accept the manager’s explanation of an inadvertent mistake.

I have reviewed the notice of meeting and each of the motions resolved at the meeting, and conclude that there is no need for this meeting to be invalidated. I am satisfied that all owners were made fully aware of the incorrect reference to the accommodation module, in place of the standard module, and sensibly resolved to proceed with the meeting on the basis that the minutes would be amended to correctly refer to the standard module. The fact that 9 of the 12 owners in the scheme resolved to proceed on this basis further supports my determination not to interfere with the validity of this meeting. My point being that the applicant, who voted against the motion to proceed with the meeting, and the two owners who were not present and did not vote on the motion, could not have affected the outcome of the motion which was resolved.

Further, whilst owners did not have the requisite 21 days notice of this motion, owners were represented at the meeting in such numbers that those present, and voting in favour of the resolution to proceed with the meeting, and to amend the minutes accordingly, constituted an absolute majority of owners.

In the circumstances, there is no legitimate basis on which the meeting should be invalidated. It is not just and equitable that the meeting be invalidated and I therefore decline to do so. The application is dismissed.