Camelot [2000] QBCCMCmr 178 (5 April 2000)

P G DanielsREFERENCE: 0746-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21486
Name of Scheme:	Camelot
Address of Scheme:	7 Chamberlain Street ROCHEDALE SOUTH QLD 4123

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

Razija Podic the owner of lot 37

P G DanielsI hereby order that the following resolution of the Committee on 6 December 1999 becomes invalid and of no effect two days after the date of this order, “Appoint signatories to the Body Corporate Account: The commission has recommended that the committee have three (3) signatories to the account with any two (2) signatures needed to sign. It was decided that the three (3) presiding members be authorised as signatories. Signature 1. Tracey Hulley (Secretary) Signature 2. Barbara Gooding (Treasurer) Signature 3. Pattie Morgan (Committee) All approved. CARRIED.”1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0746-1999

“Camelot” CTS 21486

The applicant Razija Podic, the owner of lot 37, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	Declare the Committee meeting held on 6 December 1999 illegal as it was not called by proper process;

2.	To hold a committee meeting at a time and place as arranged by the Chairperson.

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)).

The Body Corporate for the Camelot scheme held its annual general meeting on 10 November 1999.

The following people were elected to the Committee:

Razija Podic Chairperson

Pattie Morgan Ordinary member

Leslie Potter Ordinary member

Tracey Hulley Ordinary member

Barbara Gooding Ordinary member

The Body Corporate did not elect a treasurer or secretary.

Since the AGM, there has been conflict amongst Committee members. This application relates to the validity of a purported Committee meeting on 6 December 1999.

The background is as follows.

The elected chairperson received a written request dated 16 November 1999 from several Committee members to hold a Committee meeting at which certain topics would be discussed.

A committee meeting was called for 30 November 1999 at 6-00pm at the offices of A.D. Body Corporate Managers & Consultants at Ashgrove.

Three committee members objected to holding the Committee meeting at Ashgrove on the basis that it was more than 15 km from scheme land. The committee members were Tracey Hulley, Barbara Gooding and Pattie Morgan. They relied on section 29(3) of the Regulation which provides as follows:

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Place of committee meetings

29.(1) The first meeting of the committee after the committee is formed must be held where the person calling the meeting decides.

(2) Subject to subsection (1), a committee meeting must be held where the committee decides.

(3) Despite subsections (1) and (2), a committee meeting must not be held more than 15 km (measured in a straight line on a horizontal plane) from scheme land if members making up at least half of the number of committee members needed for a quorum object by written notice given to the secretary.

Their objection notice was dated 25 November 1999 and was addressed to A.D. Body Corporate Managers. They notified the manager of a Committee meeting to be held on 6 December 1999 at the carport of unit 10 on scheme land.

The Committee meeting planned for 30 November 1999 did not occur.

Prior to the meeting on 6 December 1999, the elected chairperson called a committee meeting for 9 December 1999 at her lot on scheme land. The notice calling the meeting is dated 1 December 1999.

The meeting on 6 December 1999 occurred. The meeting on 9 December 1999 did not occur as the applicant states a quorum could not be established.

The applicant now seeks to invalidate the meeting on 6 December 1999. She submits that the meeting was not properly called.

Section 27 of the Regulation provides who may call a meeting of the Committee as follows:

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Who may call committee meetings

27.(1) A meeting of the committee may be called by—

(a) the secretary or, in the secretary’s absence, the chairperson; or

(b) in the absence of both the secretary and the chairperson—another

member of the committee acting with the agreement of enough members to form a quorum at a meeting of the committee.

(2) The secretary or, in the secretary’s absence, the chairperson, must call a meeting if asked, in writing, to call the meeting by enough members of the committee to form a quorum at a meeting of the committee.

(3) The meeting must be held within 21 days after the secretary or chairperson receives the request to call it.

(4) The secretary and chairperson may both be presumed to be absent if the request for the meeting, addressed to the secretary and chairperson, is given at the address for service of the body corporate, and no reply is received within 7 days.

It will be observed that subsection 1 gives the role of calling Committee meetings to the Secretary or Chairperson of a Body Corporate. Another Committee member may only call a meeting where the chairperson and secretary are absent.

Technically, the ordinary members of the Committee were not empowered to call a meeting for 6 December 1999. It would have been acceptable for the ordinary members to suggest a convenient place and date for a meeting. However, the calling of the meeting was a function of the chairperson.

The committee meeting on 6 December 1999 was attended by Tracey Hulley, Pattie Morgan and Barbara Gooding. The minutes of the meeting indicate that the elected chairperson, Razija Podic and Leslie Potter went to the meeting area. Ms Podic was offered the opportunity of chairing the meeting however she refused. Ms Podic then left the meeting.

The question that needs to be resolved is the effect of the irregularity in calling the meeting on 6 December 1999.

It seems to me that in the interests of co-operation Ms Podic could have agreed to chair the meeting on 6 December 1999. That meeting could have been an excellent start to the administration and management of the Body Corporate.

However, the view I have taken of the matter is that the meeting is invalid due to the irregularity by which it was called.

My function now is to determine what order I should make. The minutes of the committee meeting on 6 December 1999 indicate that five agenda items were discussed including general business. Agenda items 1 and 2 related to appointing Tracey Hulley and Barbara Gooding as the Secretary and Treasurer respectively. There is no point in invalidating those appointments as both of those persons have already resigned from the Committee.

Agenda items 4 and 5 and the general business were all somewhat related. It was proposed that an extraordinary general meeting be called so that the Body Corporate could consider whether to appoint a new body corporate manager. It was agreed that the Body Corporate records would be obtained from AD Body Corporate Managers. That process was to commence by the writing of a letter to the Manager.

An extraordinary general meeting was called for 27 December 1999. However, the meeting was cancelled. Consequently, there is no need to invalidate any part of the Committee meeting that dealt with the proposed EGM. I have given consideration to whether the resolution to obtain the body corporate records from the manager should be invalidated. I am unaware if this has actually occurred. On balance, I have decided not to invalidate the resolution as it seems to me that the records will be needed if it is proposed to appoint a new manager.

The only resolution that seems to me that should be invalidated was passed in respect of agenda item 3. It was resolved that Tracey Hulley, Barbara Gooding and Pattie Morgan be authorised as signatories of the Body Corporate account. I am unaware if any of these persons have been acting in reliance on this resolution. However, I have decided to invalidate the resolution. The invalidation will take effect two days after the date of my order. I do not think it would be a “just and equitable” order to invalidate the resolution from the time of the Committee meeting if the persons mentioned above had been signing cheques in purported reliance on the resolution.

The applicant has advised in a letter received by facsimile transmission on 1 February 2000 that she no longer seeks an order to hold a committee meeting, order 2. Consequently, I will not make the order.