Whispering Springs [2000] QBCCMCmr 498 (29 September 2000)

RA MeekREFERENCE: 0204-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25106
Name of Scheme:	Whispering Springs
Address of Scheme:	10 Price Lane BUDERIM QLD 4556

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

Laurene Margaret Moonie, the owner of lot 3


RA MeekI hereby order that the application by Laurene Margaret Moonie, the owner of lot 3, for orders that, quote -

1.	That the resolution passed with respect to motion 7 on the agenda of the EGM held on the 1st February 2000 at 8.30 am be declared invalid.
2.	That in future all committee meetings be held in compliance with the BCCM Act 1997 in that proper notices and agendas be forwarded to all unit owners and committee members as is required and that resolutions passed at committee meetings prior to the 1st February 2000 be invalidated where proper notice in compliance with the legislation had not been given,

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0204-2000

“Whispering Springs” CTS 25106

The applicant Laurene Margaret Moonie, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

3.	That the resolution passed with respect to motion 7 on the agenda of the EGM held on the 1st February 2000 at 8.30 am be declared invalid.
4.	That in future all committee meetings be held in compliance with the BCCM Act 1997 in that proper notices and agendas be forwarded to all unit owners and committee members as is required and that resolutions passed at committee meetings prior to the 1st February 2000 be invalidated where proper notice in compliance with the legislation had not been given.

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)).

In the application, the applicant describes herself as the owner of lot 3. However, the application relates to her capacity as the manager under a caretaking agreement which the applicant has entered with the body corporate. I intend to proceed on the basis that this dispute is a dispute between the applicant as a service contractor and the body corporate for the scheme.

In the supporting grounds, the applicant states that the resolution carried pursuant to motion 6 on the agenda of the EGM held on 1 February 2000 (the meeting) resolved that the caretaker’s report be rejected. Motion 7, which I note was also carried, then requested that the caretaker be reprimanded for producing the report in question. That applicant states that –

... in view of the decision with respect to motion six, motion seven should not have been considered and in fact should have been ruled out of order as was requested of the chairman. ... further ... the said motion does not comply with section 47(1)(b) of the BCCM Act 1997 standard module, in that the motion was too broad and general and that the substance of the motion was not included to enable owners to vote definitely in the affirmative or the negative.

Finally the applicant seeks that a full record of a prepared statement read to the meeting by Mr T Moonie be included in the minutes of the meeting, and not only a portion of the statement.

The orders sought in the application are opposed by all owners who choose to make submissions in respect of the application. There are 25 lots in the scheme. Motions 6 and 7 were both carried by 19 votes in favour, with 1 vote against and 4 abstentions.

I do not agree that motion 7 should not have been considered by the body corporate “in view of the decision with respect to motion 6”. This argument is not logical. This argument might have been open had motion 6 not been carried, since then there would have been no basis for reprimanding the caretaker. However, given that motion 6 was carried and the body corporate had resolved to reject the caretaker’s report, then of course it is open for the body corporate to go on, as it did in motion 7, and seek to impose some sanction for the established failing on the part of the caretaker.

The applicant next alleges that motion 7 does not comply with section 47(1)(b) of the standard module, in that the motion was too broad and general and that the substance of the motion was not included to enable owners to vote definitely in the affirmative or the negative. Section 47 provides –

ú
Power of person chairing meeting to rule motion out of order
47.(1) The person chairing a general meeting of the body corporate must rule a motion out of order if—
(a) the motion, if carried, would conflict with the Act, this regulation or the by-laws, or would be unlawful or unenforceable for another reason; or
(b) except for a procedural motion for the conduct of the meeting, or a motion to correct minutes—the substance of the motion was not included in the agenda for the meeting.
(2) The person chairing the meeting must give reasons for ruling a motion out of order and the reasons must be recorded in the minutes of the meeting.
(3) The persons present and entitled to vote may reverse a ruling given under subsection (1)(a) by passing an ordinary resolution disagreeing with the ruling.

A chairperson must rule a motion out of order if either of the two circumstances specified in section 47(1) exist. I do not consider that the terms of the motion would conflict with the Act, regulation, or the by-laws, or be unlawful or unenforceable for another reason, so the section 47(1)(a) does not apply in this instance.

The applicant is relying on the basis set out in section 47(1)(b); that the substance of the motion was not included in the agenda. The applicant alleges that the motion was too broad and general, and that the substance of the motion was not included in the agenda. I have considered the motion as set out in the voting paper which forms part of the agenda for the meeting. The motion contains five sub-paragraphs which detail the failings of the report.

In relation to the report, it should be noted that all owners had been provided with a copy of the report at some time prior to the meeting. I have considered the submissions of those owners who chose to respond to the application. From those submissions, I am left in no doubt that owners were completely aware of the background to motion 7, and the overwhelming vote in favour of the motion indicated to me that owners were not only fully aware of the background to the motion, but moreover, were very much in agreement with the measure proposed in the motion. In the circumstances, I do not consider it open to the applicant to allege that the motion was too broad and general. I certainly do not consider it so, and do not consider that the chairperson was obliged under section 47(1)(b) to rule the motion out of order, as alleged.

Finally, I am not prepared to order the body corporate to in any way amend its minutes regarding the resolution in question. Full and accurate minutes do not require that every comment, item or matter occurring at a meeting be recorded.

The second order sought by the applicant is that all committee meetings be held in compliance with the BCCM Act 1997 in that proper notices and agendas be forwarded to all unit owners and committee members as is required and that resolutions passed at committee meetings prior to the 1^st February 2000 be invalidated where proper notice in compliance with the legislation had not been given.

This order is in two parts. The first is that all meetings be held in compliance with the Act. This office does not make orders to this effect. It is implicit from the legislation that meetings be held in accordance with the requirements of such legislation. Rather, this office will make orders in relation to specific allegations of non-compliance regarding meeting procedure.

The second part seeks the invalidation of all resolutions of committee meetings held prior to 1 February 2000 “where proper notice in compliance with the legislation had not been given”. The applicant was invited to provide particulars of the meetings that she claimed were held without proper notice to owners or committee members. The applicant responded by letter of 26 May 2000 –

I am therefore not requesting an order in relation to any specific meeting but generally on the basis that any committee meeting be convened in accordance with the legislation.

This office will not initiate such a general investigation. Rather, this office will investigate specific allegations of non-compliance with legislative requirements in relation to specific meetings. Moreover, the applicant was referred to the provides of section 193 of the Act which imposes a time limitation of 3 months on any application to invalidate a resolution carried at, or the whole of, any meeting, be it committee or general.

Not only has the applicant not limited her very general allegation to any specific meeting or meetings, but as well it is likely that the time limitation would apply to the meetings in question in any event. In the circumstances, I do not intend to consider the terms of this second order sought further other than to state that it is dismissed. n