La Porte D'Or [2000] QBCCMCmr 408 (10 August 2000)

P G DanielsREFERENCE: 0400-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

P G DanielsI hereby order that Marika Maselli (the appointee) of 1/7 Strathaird Rd, Bundall is appointed to call, hold and chair a general meeting (the meeting) of La Porte D'Or within 3 months of the date of this order for the purpose of the consideration of motions included on the agenda of the meeting.

I further order that, for the purposes of convening, holding and chairing the meeting, the appointee shall have all the powers, authorities, duties and functions of the chairperson, secretary and treasurer of the body corporate, with the exception of the following powers -

a) to further delegate any of those powers, authorities, duties and functions to another; or

b) to make any decision on a restricted matter within the meaning of section 26 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module); or

to incur expenditure, in respect of a single project, beyond the relevant limit for committee spending.

I further order that within seven (7) days of the appointee receiving a copy of this order, the appointee must give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme (lot owners).

I further order that lot owners shall have the right to submit to the appointee, motions for inclusion on the agenda for the meeting.

Provided that

a) the motions are received by the appointee within 28 days from the date of this order; and

b) the motions are otherwise in accordance with the requirements of the Standard Module;

then the appointee shall include the motions on the agenda of the meeting. The appointee shall also include on the agenda of the meeting motions that appear on notices prepared pursuant to section 61 of the Standard Module.

I further order that the appointee shall not give notice of the meeting until after the expiration of 28 days from the date of this order.

I further order that -

a) at least 21 days notice of the meeting must be given to lot owners,

b) notice of the meeting is to be given in accordance with section 42 of the standard module;

c) the agenda of the meeting must include the items set out in section 45(2) of the Standard Module, and the meeting may determine any other motion validly before it;

d) except as provided for in this order, the meeting and all related matters must be conducted in accordance with the Standard Module.

I further order that the appointee shall hold the appointment for the period beginning from the date of this order until the completion of the meeting.Marika Maselliof 1/7 Strathaird Rd, Bundall3212821n1yn
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0400-2000

“La Porte D'Or” CTS 12681

The applicants, Jeno and Beverly Czinder and various other owners, have sought final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	The body corporate for “La Porte D’Or will call, without delay, a general meeting of its members to consider resolutions to remove certain committee members from office and elect new committee members, amongst other business.

2.	(a) Ms Marika Maselli is appointed as administrator and is authorised to perform the duties and obligations of the body corporate committee; or in the alternative

(b) Ms Marika Maselli is appointed as administrator and is authorised to perform the duties and obligations of chairperson and secretary of the body corporate committee.

3. The administrator will call an EGM without delay.

The applicants have also sought the following interim orders:

Ms Marika Maselli be appointed as administrator and be authorised to perform the duties and obligations of the body corporate committee until such time as a new committee is properly elected.

That an extraordinary general meeting occur. A new committee will be properly elected at the extraordinary general meeting.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 223(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting (section 223(3)(p)).

The applicant has provided evidence of owners of 52 lots requisitioning an extraordinary general meeting. Those owners were invoking a procedure provided by section 61 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) that provides as follows:

Requirement for requested extraordinary general meeting

61.(1) An extraordinary general meeting (a “requested extraordinary general meeting”) of the body corporate must be called if a notice asking for an extraordinary general meeting to consider and decide motions proposed in the notice is—

(a) signed by or for the owners of at least 25% of all the lots included in the scheme; and

(b) given to the secretary or, in the secretary’s absence, the chairperson or, if the committee has not yet been chosen, given to the original owner.

(2) The secretary may be presumed to be absent if a notice is given to the secretary at the address for service of the body corporate, and no reply is received within 7 days.

(3) A requested extraordinary general meeting must be called and held within 6 weeks after the notice asking for the meeting is given.

(4) A requested extraordinary general meeting of the body corporate may be called even though the body corporate’s first annual general meeting has not yet been held.

The solicitor for the applicants, Stephen Dring of Teys McMahon, gave the notices to the body corporate manager, Marika Maselli.

A meeting has not been called to consider the motions. The applicants seek an order that a meeting be held. Other orders are also sought.

A submission on the matter has been made by Attwood Marshall on behalf of the Committee. Attwood Marshall provides various grounds as to why the meeting has not been called. I will consider each separately.

1. Names

Whilst the notices are signed, they do not clearly indicate the names of the persons.

It is argued that if the names had been clearly provided it would have assisted to clarify a number of alleged anomalies. I will consider each of these.

1. Notices from the owners of lots 76 and 90. Attwood Marshall state that these two lots appear to be owned by the same two people and yet the signatures are not identical. I searched the titles of these two lots. They are not owned by the same people. An anomaly not mentioned by Attwood Marshall is that lot 90 is owned by one person and yet there are two signatures on the notice. This would at least a raise a question as to this notice.

2. Notices for lots 125 and 144 were executed under power of attorney without notice of the grant of the power or declaration of non-revocation of the power. There is an authority supporting the signatures on the requisition for lot 144. It is behind the requisition for lot 144. A power of authority is not attached for lot 125.

3. Notices for lots 7, 15, 161 and 182 were signed by individuals on behalf of companies with no indication whether the notices were executed pursuant to a company nomination. Lot 161 for this scheme has been cancelled. I do not know what lot Attwood Marshall is referring. The other lots are owned by companies. The view I take of this matter is that the requisitions are on their face valid. A company must act through natural persons. There is nothing to indicate they are a forgery or otherwise unauthorised. I would not rule that they are invalid unless evidence to that effect was adduced.

There were 52 notices submitted. The scheme comprises 181 lots. The procedure provided by section 61 of the Regulation can be invoked by notices from at least 25% of owners. In this scheme that is 46 lots. Even if the notices for lots 90 and 125 are ignored, there are still 50 owners which is more than 25% of lots. This is not a ground on which to deny the holding of a meeting.

2. Secretary

Attwood Marshall state that the notices were delivered to Ms Maselli rather than the secretary of the Body Corporate as is required by section 61(1)(b). It is indicated in the application that this did occur.

However, it is also stated in the application that Ms Maselli passed the notices onto the Secretary Mr Munz. I am satisfied the Secretary knows of the notices and the requisition of a meeting. I would not decline to grant relief on this basis.

3. Notice/Notices

Section 61(1) of the Regulation provides for a “notice” to requisition a general meeting. In this case a large number of notices were provided. In my view this is acceptable. Section 32C of the Acts Interpretation Act 1954 provides that words in the singular include the plural.

Attwood Marshall state the form requisitioning the general meeting is different from that proposed by commentators of the legislation. In my view, the relevant point is that the forms comply with the substantive requirements of section 61.

4. Type of motion

Section 42(3)(c)(ii) of the Regulation provides that voting papers for a general meeting must state “for each motion whether a resolution without dissent, special resolution or ordinary resolution is required” The provision does not apply to a notice requisitioning a general meeting.

5. Appointment of Committee

The notices requisitioning an EGM seek the removal of all Committee members and that they be replaced with other persons. The power to remove a Committee member by ordinary resolution is provided by section 25(2)(f) of the Regulation. Attwood Marshall argues that the power should not be exercised to remove the whole Committee as that would effectively be the election of a new Committee. It is argued that a full election can only take place pursuant to sections 13 to 22 of the Regulation.

In my view the notices are valid pursuant to section 25(2)(f).

Order

In my view there is no basis on which to refrain from holding an EGM.

I have decided to order an EGM by interim order as I do not think the applicants should have to wait for a final order that requires the convening of a meeting. I note that Attwood Marshall have requested time to make detailed submissions. They argue this is a complex matter which should not be disposed of by interim order. I decline to grant an extension. I do not think this is a complex matter. The Body Corporate is obliged to convene an EGM. I do not propose to delay what should have already been done.

I am not making any findings about the actions of the current Committee. I have found this unnecessary as the applicants are entitled to relief based on section 61 of the Regulation. It is a matter for the Body Corporate to determine if Committee members should be removed from office.

I will appoint Ms Maselli to convene the meeting. I am doing this on the basis that Ms Maselli is already associated with the scheme through body corporate management.

I have decided to order an EGM rather than appoint an administrator who can later call an EGM. The second option, would only delay the calling of a meeting.

I have decided to allow all owners to submit motions for consideration at the EGM. I am not limiting my order to motions on the requisition notices. I take note of the fact that further applications have been filed with the Commissioner’s office with respect to maintenance and other issues relating to this scheme. I suggest that owners use this opportunity to submit appropriate motions for consideration by the Body Corporate.

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 an aggrieved person considers that an appeal of this decision is warranted, then the interim order can be appealed.