Paddington Vista Apartments [2000] QBCCMCmr 37 (28 January 2000)

P J HANLYREFERENCE: 0690-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25258
Name of Scheme:	Paddington Vista Apartments
Address of Scheme:	81 Guthrie Street PADDINGTON QLD 4064

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Paddington Vista Apartments CTS 25258

P J HANLYI hereby order, pursuant to section 87(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 that the engagement by the body corporate on 10 November 1997 of Prime Rental Services as body corporate manager for Paddington Vista Apartments is void.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0690-1999

“Paddington Vista Apartments” CTS 25258

The applicant, the Body Corporate for Paddington Vista Apartments CTS 25258, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Consideration by the adjudicator of the validity of the appointment of Prime Rental Services as the body corporate manager.

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)).

In the supporting grounds, the applicant states that the scheme was not registered until 19 January 1998, but the instrument of appointment for Prime Rental Services was signed on 10 January 1998. The applicant therefore contends that under sections 26(2) and 31 of the Act, and section 87 of the Body Corporate and Community Management (Standard Module) Regulation 1997 the appointment is void.

The body corporate manager was invited to respond to the application. The body corporate manager admits the allegations made by the applicant, but states that at no time was it intended that the duties of the body corporate manager be carried out in an improper way. The body corporate manager further states that at all times correspondence has been responded to, and all other duties have been carried out as if the appointment were valid.

It is apparent on the face of the material before me that the meeting purportedly held by the body corporate on 10 November 1997 was invalid. The first Community Management Statement was recorded on 19 January 1998, so the community titles scheme had not been established at the time of the meeting (section 26(2) of the Act) and therefore no body corporate had been created (section 31 of the Act). It follows that any motions purportedly carried at that meeting are void and the engagement of the body corporate manager was not approved by ordinary resolution of the body corporate (section 87(1)(a) of the Standard Module). I am therefore satisfied that, pursuant to section 87(2) of the Standard Module, the engagement of Prime Rental Services is void.

The body corporate manager has requested clarification as to whether he is entitled to be remunerated for the work that he has completed on behalf of owners, however this is a matter upon which he should obtain his own advice.