Fairthorpe [2000] QBCCMCmr 492 (28 September 2000)

P J HanlyREFERENCE: 0366-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5820
Name of Scheme:	Fairthorpe
Address of Scheme:	56 Dunmore Terrace AUCHENFLOWER QLD 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Fairthorpe CTS 5820

P J HanlyI hereby order that motion 2 headed Brisbane City Council Easement Resumption considered at the Extraordinary General Meeting held on 30 June 2000 shall be deemed to have been carried by resolution without dissent.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0366-2000

“Fairthorpe” CTS 5820

The applicant body corporate has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that motion 2 on the agenda of the Extraordinary General Meeting held on 30 June 2000 be given effect as having been passed by resolution without dissent.

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 body corporate states that on 6 June 2000 it received documentation from the Brisbane City Council pertaining to “the Council’s Proposed Resumption for Purposes Incidental to Road Purposes” of part of the common property of the community titles scheme. This documentation included a right to serve a written objection to the Council by 12 July 2000. As a consequence, the body corporate convened an Extraordinary General Meeting on 30 June 2000 to consider the Council’s proposal. The body corporate states that the relevant motion on the agenda, which required a resolution without dissent, was lost due to one dissenting vote. The body corporate claims that the dissenter, Mr Schaad from Lot 30 did not attend the meeting, but subsequently informed the chairperson that his vote “was because of concerns for the wildlife in the area”.

The body corporate has supplied a copy of the minutes of the Extraordinary General Meeting dated 30 June 2000. Motion 2 on the agenda of this meeting related to the Brisbane City Council Easement Resumption. Motion 2 states “That the Body Corporate agree to the Brisbane City Council proposal to resume an easement over part of the property, for purposes incidental to road purposes, all in accordance with the Brisbane City Council, 2 June 2000 dated documentation, copy attached to this notice of Extraordinary General Meeting”. The body corporate has included in the application a copy of the “Notice of Intention to Resume” dated 2 June 2000 which was attached to a letter from the Brisbane City Council advising the body corporate of the Council’s intention to acquire an easement containing an area of 128 square metres of common property for purposes incidental to road purposes. The minutes indicate that motion 2 required a resolution without dissent, and was lost with nineteen “yes” votes and one “no” vote.

A copy of the application was forwarded to Mr Jack Schaad, the owner of Lot 30 and the person who voted “no” to motion 2 at the Extraordinary General Meeting. Mr Schaad has not responded to the application. I consider that if a lot owner had valid reasons for voting “no” on a motion at a general meeting, he would be willing to convey his views when invited to do so, particularly as this application seeks to overturn his vote. The only reason for Mr Schaad’s opposition to motion 2, as conveyed to me by the body corporate, is that he had concerns for the wildlife in the area. Therefore, I have decided to disregard Mr Schaad’s opposition to motion 2, as he would appear not to have had a valid reason for voting against the motion, or alternatively, he no longer objects to the proposal contained in motion 2.

For these reasons, I am satisfied that the opposition to motion 2 at the Extraordinary General Meeting held on 30 June 2000 was unreasonable. I have therefore ordered that motion 2 shall be deemed to have been carried by resolution without dissent.

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