Genesis [2000] QBCCMCmr 212 (8 May 2000)

C G YOUNGREFERENCE: 0222-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10149
Name of Scheme:	Genesis
Address of Scheme:	Corner Gold Coast Highway and Markwell Avenue SURFERS PARADISE QLD 4217

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

Patricia Ann HEBER, as the owner of Lots 37 and 51,



C G YOUNGI hereby order that the application for an interim order that the sequence of motions put to the extraordinary general meeting of 8 May 2000 be varied from set out on the agenda so that Motion 7 be considered before Motion 6, both of which concern the adoption of regulation modules, is dismissed.

This order confirms my verbal interim order given to the parties on Friday 5 May 2000. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0222-2000

“Genesis” CMS 10149

The applicant, Patricia Heber of Lots 37 and 51, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The interim order I seek is to have the Body Corporate of Genesis CTS 10149 withdraw Item number 6 of its voting paper which accompanies and forms part of the agenda for the Extraordinary General Meeting to be held on 8 May 2000 and that such withdrawal be conveyed in writing to the owners of all units in Genesis. On withdrawing the aforementioned Item I seek to have it replaced with Item number 7 as currently numbered on the Voting Paper and that the body corporate then submit two separate and distinct motions for its Community Management Statement the motions to be substantially as indicated in 10(c) above (referring to paragraph in application ).

The change put forward by the applicant in paragraph 10(c) is not altogether clear, however I think it essentially requires that owners first vote as to which regulation module they prefer, either the Standard Module or the Accommodation Module, and then their choice becomes part of a machinery motion for the consent, endorsement and lodgement of the replacement Community Management Statement (hereafter “CMS”).

The interim order sought by the applicant is also the final order for the application.

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)).

On Friday 5 May 2000 I conducted a teleconference with representatives of the parties to the application, Mr Heber on behalf of the applicant Patricia Heber, and Ms Kim Elliott, Body Corporate Manager, for the committee on behalf of the respondent body corporate. This teleconference was necessary to provide the parties with my decision on the application for an interim order before the meeting subject of the application, the extraordinary general meeting scheduled for today 8 May 2000 at 9.30am, was held. Verbal notice of the order was necessary because of, firstly, the lateness of my receipt of the file, and secondly, the “I Love You” computer virus prevented my completing a hardcopy of the interim order (for faxing to the parties) because all departmental computers were shut down all Friday afternoon.

I informed both parties that my order was to dismiss the interim order applied for by the applicant. The reasons are set out below.

The body corporate committee has responded to an invitation by this office to address the issues raised in the application. The committee contends that an adjudicator has no power to adjudicate the application, as it does not relate to any of the matters able to be adjudicated under section 223(1) of the Act.
The terms of section 223(1) (and section 183) are couched in very general terms to give adjudicators a wide jurisdiction to resolve disputes in a community titles context. In this instance, paragraph (b) can be read to include the “exercise of rights or powers, or the performance of duties, under this Act” by a committee in determining the order of motions on a meeting agenda, which is at the core of this application. In my opinion I have jurisdiction to determine this matter.

The wording of the application shows that the applicant is apparently under a misapprehension that the body corporate currently has no governing regulation module. I have reached this conclusion from –

• the comment “Not allocated yet” at Item 6 of the application where the type of regulation module is asked to be shown; and

• the comment in paragraph 7 of Item 13 “the complex will automatically be registered under the Standard regulation module as the body corporate will not have been able to resolve the matter before 1 July 2000”

The fact is that the transitional provisions of the Act (see section 283(2)(d) and section 3(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (hereafter “Standard Module”)), provide that for schemes existing at the commencement of the Act, such as “Genesis”, the governing regulation module is the Standard Module. There is no need for an “allocation” – the Standard Module applied from 13 July 1997, the commencement date of the Act.

Next, the applicant suggests that the consideration of her motion first will lead to a fairer choice being made by the owners than that obtained if they considered the committee’s motion first. She appears to base this on two premises-

Firstly, if Motion 6 is considered first, and passes, then Motion 7 may not be put to the vote as the matter of a replacement CMS had already been decided. This is based on the outcome of voting on Motion 9 at the annual general meeting held on 30 October 1998, when a motion to adopt the Standard Module was lost as a special resolution on a vote of 16 votes in favour and 15 against. I cannot understand the logic of this proposition – if the same number of owners are opposed to the Standard Module then the minimum 13 negative votes necessary to stop a special resolution will be available to ensure Motion 6 fails. Motion 7 would then be put to a vote and, again if the same owners vote similarly to 1998, then this motion will fail also. The result will be that the “interim statement (CMS)” status imposed by the Act, including the Standard Module, will remain, and will likely become the “standard statement (CMS)”. Many if not most bodies corporate will follow that path.

Even if there was some advantage to the applicant in having her Motion 7 put first, the question arises as to why her motion should have an advantage over that of the committee. Although the applicant does not specifically link the two, I think her comment at paragraph 3 of Item 13 that “the wish of the bulk of owners who do not want to be registered under the standard module but under the accommodation module” is the basis for the perceived advantage. This links to my second reason.

Secondly, there is, in my opinion, a good case for ensuring that like or alternative motions are placed on an agenda either as alternatives within the one motion or in immediate sequence. There can be unfairness where two motions about the same matter (eg engaging a Body Corporate Manager or other contractor for a particular task) are widely separated in an agenda. However in this case the motions are at least in sequence and therefore owners can easily compare the motions and, if necessary, change their vote on the initial motion.

For the above reasons I advised the parties I would be dismissing the interim order application, and I have ordered accordingly.

I was then informed by Ms Elliott that, in conversation with the chairperson, it had already been agreed to not proceed with Motion 6 as the wording of some by-laws in the draft CMS circulated to owners was incorrect, or with Motion 7 because no draft CMS had been submitted or circulated to owners.

Mr Heber stated that his wife’s application was not directed towards adopting the accommodation module, only that owners be kept informed so that they could make informed decisions on these matters.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.