Sherwood Glen [2000] QBCCMCmr 47 (4 February 2000)

P G DanielsREFERENCE: 0029-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20173
Name of Scheme:	Sherwood Glen
Address of Scheme:	4 Sherwood Close MUDGEERABA QLD 4213

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

Mr Richard Alexander and Mrs Janine Maree Ploog the co-owners of lot 1,



P G DanielsI hereby order that the application for orders that:

1.	David Yeates and Australian Unit Administration be censured;

2.	An extraordinary general meeting be called

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0029-2000

“Sherwood Glen” CTS 20173

The applicants, Mr Richard Alexander and Mrs Janine Maree Ploog, the co-owners of lot 1, have sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1. David Yeates and Australian Unit Administration be censured;

2.	An extraordinary general meeting be called .

Section 223(1) 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)).

The applicants seek an order that the Body Corporate Manager for this scheme be censured. They advance the following seven grounds for such an order:

1.	The Manager conducted an irregular annual general meeting on 2 December 1997;
2.	The Manager continued to act in that role after the meeting;
3.	The Manager executed a management agreement on behalf of itself and the Body Corporate;
4.	The Manager improperly applied penalty rates to the late payment of contributions;
5.	The Manager improperly issued legal proceedings against the applicants;
6.	The Manager failed to inform the Body Corporate that a person could not be the Chairperson;
7.	The Manager spent $7,500 from the sinking fund that did not benefit the applicants and was to their detriment.

The applicants seek an order to call an extraordinary general meeting at which various decisions can be validated. The meeting would also consider whether the Manager should be censured and his contract terminated. If the contract is terminated, then the Body Corporate could appoint a temporary Manager and elect a properly constituted Committee.

I do not have power to make the orders which the applicants seek.

Section 223 of the Act provides that an adjudicator can make a “just and equitable” order. An order must have some legal effect or meaning such that the legal positions of parties to a dispute are resolved. An order of censure does not have legal effect or meaning. A censure would have no effect on the contractual position of a Body Corporate Manager. I decline to make the order sought.

The second order which is sought relates to the calling of an extraordinary general meeting. Section 61 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides for the calling of an EGM as follows:

ú

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.

If the applicants want an EGM to take place so that the position of the Body Corporate Manager can be considered, they will need to comply with section 61.

Finally, I do not have jurisdiction in respect of this matter as the parties are a lot owner and the Body Corporate Manager. The jurisdiction of an adjudicator is defined in section 182 of the Act as follows:

182. In this chapter—

“dispute” means a dispute between—

(a) the owner or occupier of a lot included in a community titles

scheme and the owner or occupier of another lot included in the

scheme; or

(b) the body corporate for a community titles scheme and the owner

or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body

corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a service

contractor for the scheme who is also a letting agent for the

scheme; or

(e) the body corporate for a community titles scheme and a letting

agent for the scheme.

“occupier”, of a lot, means a person in the person’s capacity as the

occupier of the lot, and not, for example, in the person’s capacity as a

service contractor or letting agent for the scheme.

“owner”, of a lot, means a person in the person’s capacity as the owner of

the lot, and not, for example, in the person’s capacity as a service

contractor or letting agent for the scheme.

It will be observed that only the Body Corporate can bring an application against a Body Corporate Manager: paragraph (c). There is no provision allowing an owner to bring an application against a Body Corporate Manager.

Submissions were not sought in respect of this application due to its nature.

I dismiss the application.