Inveroona Villas [2000] QBCCMCmr 414 (14 August 2000)

CG YoungREFERENCE: 0293-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24623
Name of Scheme:	Inveroona Villas
Address of Scheme:	24 Norfolk Avenue SURFERS PARADISE QLD 4217

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

Carlene Mary VINCENT, the owner of Lot 1,



CG YoungI hereby order that the application for an order that the engagement of Complete Body Corporate Services Pty Ltd be declared to be correct, valid and binding on Gregory and Julie CARROLL, the co-owners of Lot 2, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0293-2000

“Inveroona Villas” CTS 24623

The applicant, Carlene Vincent of Lot 1 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That the appointment of Kim Elliott’s Complete Body Corporate Services Pty Ltd is correct, valid and binding on the Carrolls

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 she is the original owner/developer for the community titles scheme and sold Lot 2 to Gregory and Julie Carroll. Mrs Vincent has outlined various issues which have arisen after the Carroll’s purchased Lot 2, including that body corporate administrative requirements such as insurance and financial management were not satisfactorily resolved with the Carroll’s. Mrs Vincent states that she finally approached Kim Elliott of Complete Body Corporate Services Pty Ltd (“CBCS”) for assistance in convening an annual general meeting which was subsequently held on 12 April 2000. She states that this meeting was held at the Southport office of CBCS but that the Carroll’s did not attend. A copy of the notice of meeting, the minutes of the meeting, and a copy of the executed body corporate management agreement with CBCS, were included with the application.

A copy of the application was given to the nominated body corporate secretary and to the owners of Lot 2. Ms Elliott responded stating that on 24 March 2000 a notice of meeting was posted to both owners at their respective addresses shown on the roll. As evidence of this she has submitted a copy of an “Australia Post” receipt dated 24 March 2000; the receipt is a machine generated one and does not specify details of the mail it relates too.

Mr Carroll has responded to the application on behalf of the co-owners of Lot 2. Mr Carroll opposes the appointment of CBCS on the grounds that:

•	Kim Elliott could not provide independent management due to her relationship with Mrs Vincent’s son.
•	The owners of Lot 2 did not receive the notice of meeting.
•	The owners of Lot 2 were not otherwise contacted by CBCS before the meeting.
•	Ms Carroll has experience in body corporate matters and had offered to manage this body corporate. Mr Carroll included letters from other body corporate managers and a body corporate chairperson which indicate Ms Carroll’s experience in body corporate administration. It is contended that had she knowledge of the notice then she would have realised its importance and attended the meeting.

Mrs Vincent is seeking an order to confirm the appointment of the body corporate manager. This is an order which I am not prepared to make for the following reasons.

The body corporate comprises the owners of all lots in the community titles scheme. Decisions are made by the body corporate by resolution in general meeting. The legislation is prescriptive in how such meetings are to be convened and conducted, including how Body Corporate Managers are engaged (see sections 78 and 87 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). I make the following comments in respect of the meeting of 12 April 2000.

Firstly, the notice of meeting was allegedly posted on 24 March 2000. Section 43 of the Standard Module provides that a “General meeting must be held at least 21 days after notice of the meeting is given to lot owners”. As the meeting was held on 12 April then obviously the 21 days requirement under section 43 were not complied with.

Secondly, Motion 9 on the agenda for the meeting proposed the appointment of the body corporate manager for “a further period of one year”. My reading of the documents provided with the application indicates that CBCS had not previously been engaged by the body corporate as its Body Corporate Manager. If this is so then the wording of the motion is wrong, however this appears to have been a simple error of no great importance. However, what is of significance in this motion is that the period proposed for engagement is one year. The Administration Agreement subsequently before the meeting (see section 87 of the Standard Module), and executed later that day, is for a term of three years. There is therefore a substantial inconsistency, and in my opinion a fatal one, between the term stated in the motion and the term stated in the agreement.

Thirdly, only Mrs Vincent has signed the Administration Agreement under the seal of the body corporate. Section 139 of the Standard Module prescribes how a body corporate seal is to be kept and used. Section 139(3) states that “if the body corporate has not resolved how the seal is to be used, the seal may, if authorised by the committee, be attached to a document in the presence of at least 2 committee members, 1 of whom must be the chairperson or secretary”. I note that the minutes show C. Vincent elected as chairperson and K. Elliott elected as secretary/treasurer. Section 11 of the Standard Module provides that where there are only two lots in the scheme and there are different owners, “the committee consists of 2 individuals who are owners, or the nominees of owners, of lots, and they must decide between themselves who are to hold the positions of the executive members of the committee (and, if they cannot agree, the positions of the executive members are jointly held by both of them)”. Both lot owners, or their nominees should be on the committee, and as such both should have signed the Administration Agreement under the body corporate seal.

Lastly, the body corporate seal used on the Administration Agreement contains the name “Inveroona Villas B.U.P. 106780”. This seal contains part of the name of the body corporate required by the Building Units and Group Titles Act 1980 (“the 1980 Act”) which was superseded when the current Act commenced on 13 July 1997. The name of this body corporate has changed under the current Act to “Body Corporate for Inveroona Villas Community Titles Scheme 24623”. The body corporate’s seal must contain this name and not that name specified by the 1980 Act.




This application seeks a confirmation of the agreement and for the foregoing reasons I do not consider it to be a valid agreement and therefore decline to confirm it as a valid agreement.