Edgewater Gardens [2000] QBCCMCmr 310 (28 June 2000)

C G YOUNGREFERENCE: 0177-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10507
Name of Scheme:	Edgewater Gardens
Address of Scheme:	21 Whelan Street SURFERS PARADISE QLD 4217

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

Geoffrey Charles HENVILLE, the owner of Lot 40,



C G YOUNGI hereby order that the application for an order that the owner of Lot 61 be informed that only one person can represent the lot on the body corporate committee, and that only one person representing the lot should nominate for a committee position, is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0177-2000

“Edgewater Gardens” CTS 10507

The applicant, Geoffrey Henville of Lot 40, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The order that I am seeking is –

1.	that the owner of Lot 61 be officially advised that each lot in Edgewater Gardens is permitted to have one only representative on the committee of the body corporate; and further

2.	that the same owner be ordered to immediately relinquish one of the two positions currently held by representatives of Lot 61 on the committee of the body corporate ie William Clements as chairman or Julie Georgeff as committee member; and further

3.	that the same owner be ordered not to seek either by election or appointment to have two representatives of Lot 61 in the future on the committee of the body corporate.

(Adjudicator’s note: For clarity I have separated and numbered the separate orders sought)

Section 223(1) of the Act 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)).

This is one of three applications by Mr Henville that I have before me for adjudication, the others being Application No’s 176-2000 and 178-2000. I also have for determination Application 164-2000 lodged by a Sylvia Trankalis who is seeking similar orders to those sought by Henville in those other applications. Because of the similarities I shall determine those matters together in the near future. I am also aware that another application, Application No. 231-2000, also deals with that matter.

However, this application concerns a separate matter entirely and can be determined on its own.

In the supporting grounds, the applicant states that the nomination and election of two persons representing the same lot, William Clemens and Julie Georgeff of Lot 61, is an “illegal and dishonourable practice” and a “wrongful practice. The applicant then goes on to say that when a casual vacancy in the 1999 committee occurred he applied to fill the position but was ignored in favour of an appointee of the Chairperson (Clemens). The applicant considers the committee to be “stacked” with “yes men” of the chairperson. The applicant states that he is further concerned over both Clemens and Georgeff again nominating for committee positions on the 2000 committee. His concerns have given rise to the three orders being sought

The statements of the applicant referring to his failure in being appointed to a casual vacancy and that he believes the committee to be stacked, are irrelevant in determining this application whether they are, or are not, true.

In regard to the nub of the dispute, namely that two persons representing the same lot cannot serve on the same committee, the applicant has offered no legislative reference or other supporting basis despite branding it as “illegal”. I do not know which provision of the relevant piece of legislation, the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”), the applicant wishes to rely on in support of his application, if indeed he has a particular provision in mind. While this jurisdiction attempts to assist owners in resolving their disputes, including the acceptance of applications that do not give the specific legislative references, applicants are expected to at least give an indication as to why they consider an action or event is “illegal”. The applicant, Mr Henville, has given absolutely no indication why he considers his assertion that two such persons cannot serve together on a committee, to be true.

Section 10 of the Standard Module sets out the eligibility requirements for membership of a body corporate committee. It appears to me that the applicant may be incorrectly relying on sub-section (5) of this section. This sub-section prevents co-owners from being members of the committee where membership is based on ownership. I am unaware whether ownership was the basis of membership for either or both of the two persons (the applicant has provided no details of their nominations), however this is in any case irrelevant as the owner is a company, Jia Pty Ltd.

In the absence of any information or legislative reference, I do not intend to investigate this matter any further on behalf of the applicant.

Since this application was lodged, I understand that Clemens was re-elected to the committee at the annual general meeting held on 29 May 2000 but that Georgeff was not. Order 2 is therefore no longer relevant. Orders 1 and 3 are still relevant because of their generalist nature, but for the reasons given above have been dismissed.


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