Bentley Park [2000] QBCCMCmr 499 (29 September 2000)

PJ HanlyREFERENCE: 0284-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22740
Name of Scheme:	Bentley Park
Address of Scheme:	Paul James Drive Bentley Park NOME QLD 4816

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

Richard Ryan a co-owner of lot 12, Neil McLeod a co-owner of lot 18, Jeffrey Davis a co-owner of lot 4, Michael Jonsson a co-owner of lot 13, Robert Syron a co-owner of lot 11, Keith Harvey the owner of lot 5, Cameron Lee a co-owner of lot 6, David Wood a co-owner of lot 9 and Peter Russell a co-owner of lot 10



PJ HanlyP G DanielsI hereby order that Patricia Kite (the appointee) of Suite 12, 175 Sturt Street, Townsville is appointed to call, hold and chair the annual general meeting (the meeting) of Bentley Park for the year 2000-2001 within 3 months of the date of this order.

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 -

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) and (3) 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.Elwyn Denmanof 154 Brisbane Road, Booval3 1414n1nn 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0284-2000

“Bentley Park” CTS 22740

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Appoints an administrator under Section 223(3)(v) of the B.C.C.M. Act for the purposes of holding and observing an extraordinary meeting to consider motions to appoint a body corporate manager, to possibly consider a motion to remove the executive committee members from office, to appoint a new executive and to deal with matters unresolved from previous meetings.

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 make numerous complaints about the Committee. They are as follows:

“Committee meetings are being held in a manner that does not comply with the Standard Module, copies of resolutions passed at a meeting have in most instances not been distributed to owners before the meeting or were distributed to owners of each lot after the following meeting; therefore the owners did not have the opportunity to lodge a “notice of objection”.

...

Decisions made at annual meetings and committee meetings are not being acted upon and body corporate assets are deteriorating as a result;

...

Notices of contribution payable were not issued on time or with correct information, resulting in an operating deficit;

...

Decisions of a restricted nature are being made by the committee.

...

Minutes of annual meetings not accurately recorded with all motions included, and numbers of votes cast for and against motions omitted, motions are also being reworded;

Committee elections held did not comply with legislation

...

Committee members have not declared where a conflict of interest may occur;

...

Executive committee members are making decisions without reference to owners in non-emergency matters;

...

Executive committee members are making decisions without reference to the lot owners and committee in emergency matters;

...

The committee is not enforcing bylaws

...

The committee does not respond to lot owners written requests for response of information about body corporate issues.

The applicants provide further details under each of the above headings. The allegations considered altogether are quite serious. Neil McLeod a co-applicant states in a letter enclosing the application that four of the then Committee members are co-applicants.

Since the application was made in late May 2000, an extraordinary general meeting of the Body Corporate has been held on 29 July 2000 (the EGM). The minutes of the meeting record that it was agreed to appoint a body corporate manager. There were 13 votes for and 3 votes against the motion. The minutes of the EGM record the following about the then Committee:

“Cameron Lee put forward a procedural motion that a vote of No Confidence be made against Chairperson, Secretary and Treasurer Seconded by R Syron

For – 10 Abstain – 2

Chairperson, secretary and treasurer were asked to vacate their positions and hand all relevant documentation to the incoming Chairperson

Lot 11 moved a motion that Cameron Lee be appointed Chairman and Body Corporate Services assume the role of Secretary and Treasurer.

Seconded by J Davis

For –10 Against – 2 Abstain – 1 Motion carries”

The EGM has been challenged in application 459-00. It will be considered at a later date after the closing date for receipt of submissions.

In this case, the applicants have already received what they sought by order. An EGM has been held at which the Body Corporate considered the positions of the Committee and other issues. Additionally, an annual general meeting will be held in the near future. Body Corporate Services has advised in application 527-2000 that the financial year end date for this scheme is 31 August 2000. An AGM must be held within three months of that date: section 60 of the Body Corporate and Community Management (Standard Module) Regulation 1997. A new Committee should be elected at the AGM.

In these circumstances, I do not propose to order a further general meeting. Owners should avail themselves of the opportunity presented by the AGM.
I do propose to make an order authorising Patricia Kite of Body Corporate Services to call, hold and chair the AGM. My reasons are as follows. The legislation gives power to the Secretary to call a meeting. There is some uncertainty about whether this scheme has a Secretary and who that Secretary is. There is a challenge to the EGM at which the then Secretary was removed and Body Corporate Services appointed as Secretary. There is support in the Body Corporate for the appointment of a manager. The voting at the EGM was 13 votes for and 3 against. The validity and effect of the relevant resolution will be considered at a later date. Given the level of conflict in the scheme, I have formed the view that it would be preferable for an independent person to call, hold and chair the meeting.

I will appoint Ms Kite to call, hold and chair the meeting within three months of the date of my order. This may mean that the meeting could be held on a date after three months from the end of the financial year. I have decided to give this extra time to allow Ms Kite to properly prepare for the meeting. It will be a matter for herself to determine when the meeting will be held.