9 Martin Street [2000] QBCCMCmr 579 (10 November 2000)

PJ HanlyREFERENCE: 0418-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17709
Name of Scheme:	9 Martin Street
Address of Scheme:	4/9 Martin Street NERANG QLD 4211

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

Robert George EDWARDS, the owner of Lot 6



PJ HanlyI hereby order that the application by Robert George EDWARDS, the owner of Lot 6 for an order 1nthat the body corporate advise lot owners of committee meetings and of the resolutions of the committee, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0418-2000

“9 Martin Street” CTS 17709

The applicant, Robert George Edwards the owner of Lot 6, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the body corporate notify all owners of committee meetings and of the decisions of the committee.

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 he has unsuccessfully requested that the committee give lot owners notice of committee meetings and a copy of the minutes of committee meetings.

A copy of the application was forwarded to the secretary for distribution to all lot owners (excluding the applicant) and to all members of the committee. In her response to the application, the body corporate secretary, Jeanette Hutchins states that in the last four years there have not been any committee meetings.

The Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") is the regulation module which applies to this scheme. Sections 7 and 9 of the Standard Module provides that there must be a committee for the body corporate, and that the committee must consist of at least three persons. The committee is charged with the responsibility of administering the day-to-day management of the body corporate, and as such the legislation specifies the committee’s powers and restrictions. While the Act provides that the committee can make decisions on behalf of the body corporate, the Standard Module provides the process for making a decision, namely at a committee meeting or by voting outside a committee meeting. Committee decisions cannot be made in any other way. For example, a committee member cannot make a unilateral decision without the appropriate authority of the body corporate or the committee.

Ms Hutchins has stated that while annual general meetings have been held over the last four years, there have not been committee meetings over this time. While I note that there are only six lots in this scheme, I am concerned with the fact that committee meetings have not been held. As the body corporate is correctly holding annual general meetings, at the very minimum, there must be at least one committee meeting held each year. The Standard Module provides that the committee must prepare an agenda for each general meeting, and that the committee prepare the proposed budgets for adoption at each annual general meeting.
As a consequence, a meeting of the committee is necessary to meet with these requirements of the Standard Module. In the absence of a meeting or a decision by voting outside a meeting, the committee cannot decide on an agenda for a general meeting, or on a budget to be presented at a general meeting. Further, I note that Ms Hutchins has submitted that there is some work which is not decided upon at an annual general meeting. Work which has not been approved by the body corporate in general meeting can only be decided upon by the committee in accordance with the provisions of the Standard Module.

A meeting of the committee must be called in accordance with sections 27 to 30 of the Standard Module. Specifically, advice of a committee meeting must be given to each lot owner (other than a lot owner who has instructed the secretary not to be given such advice) at least 24 hours before the meeting is held. Voting at a committee meeting must be in accordance with section 33 of the Standard Module. Section 37 of the Standard Module makes provision for carrying out resolutions of committee meetings. Sections 37(1) to (4) provide as follows:
ÿ

“Carrying out resolutions of committee meetings

37.(1) A copy of a resolution passed at a meeting of the committee must be given to the owner of each lot included in the scheme (other than a lot owner who has instructed the secretary that the lot owner no longer wishes to be given copies of committee resolutions and who has not withdrawn the instruction), whether separately or as a part of a copy of minutes of the meeting at which the resolution was passed, in 1 of the following ways—

(a) giving it to the lot owner personally;

(b) sending it by mail;

(c) sending it by facsimile.

(2) A notice (a “notice of opposition”), signed by or for the owners of at least half the lots included in the scheme, may be given to the secretary, opposing the carrying out of the resolution.

(3) A notice of opposition must be given to the secretary within 7 days after action taken under subsection (1) is completed (the “required period”).

(4) The committee may carry out the resolution only if—

(a) no notice of opposition is received by the secretary within the required period; or

(b) the resolution is necessary to deal with an emergency, and—

(i) the amount required to put the resolution into effect is within the relevant limit for committee spending for the scheme; or

(ii) an adjudicator acting under the dispute resolution provisions authorises the committee to carry out the resolution; or

(c) the resolution is ratified by ordinary resolution of the body corporate.”

It is clear that the committee has not held meetings over the last four years and there is therefore no material which can be provided to owners in that regard. It is not the practice of this office to make orders which are merely a restatement of legislative provisions. I have therefore dismissed the application.

Nevertheless, the committee members should note their obligation to convene meetings and make decisions in accordance with the provisions of the Act and the Standard Module. It may also be appropriate for the applicant to consider becoming a member of the committee if he has genuine concerns regarding the current management of the body corporate.