Banyandah Towers [2000] QBCCMCmr 582 (13 November 2000)

P J HANLYREFERENCE: 0242-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10295
Name of Scheme:	Banyandah Towers
Address of Scheme:	150 Duporth Avenue MAROOCHYDORE QLD 4558

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

James Gerard Callaghan, the co-owner of lot 106; Colin Edward David and Kim Maree Davis the owners of lots 27 and 38; Michael Gregory Clark, Roberta Lynn Clark, Daniel Joseph Ryan, James Phillip Clark, Peter Grant Clark, Kathleen Mary Clark the owners of lots 13, 34, 72 and 103; and Peter Gerald Penrose the co-owner as trustee of lot 46


I hereby order that the application for an order

• That copies of all resolutions of the committee made outside committee meetings, inclusive of delegated decisions of the body corporate manager, for the period 1 November 1996 to 27 April 2000 be supplied to all unit owners

• That the body corporate are to hold an extraordinary general meeting to resolve the appointment of a body corporate manager for after 20 May 2000, at which date the current body corporate manager’s contract expires

• That the body corporate are to hold an extraordinary general meeting to discuss the failure of the committee to hold regular meetings, as well as the attendance record of committee members at these meetings

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0242-2000

“Banyandah Towers” CTS 10295

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

• That copies of all resolutions of the committee made outside committee meetings, inclusive of delegated decisions of the body corporate manager, for the period 1 November 1996 to 27 April 2000 be supplied to all unit owners.

• That the body corporate are to hold an extraordinary general meeting to resolve the appointment of a body corporate manager for after 20 May 2000, at which date the current body corporate manager’s contract expires.

• That the body corporate are to hold an extraordinary general meeting to discuss the failure of the committee to hold regular meetings, as well as the attendance record of committee members at these meetings.

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 state that the committee and the body corporate manager have failed to provide owners with copies of any resolutions they have made outside committee meetings as required by the Act, which represents a breach of the Act. The applicants further state that the committee does not hold regular meetings. The applicants further state that the body corporate manager’s agreement with the body corporate expired on 20 May 2000 and an extraordinary general meeting should be held to resolve the issue.

The committee was invited to respond to the application. The committee acknowledged that it had polled its members for their vote outside of a formal committee meeting on five occasions. The committee also confirmed that the outcome of those postal polls would be sent to all owners with the minutes of the next committee meeting, which was then due shortly. The committee pointed out that the body corporate manager’s agreement with the body corporate expired on 20 July 2000, not on 20 May 2000 as alleged. Finally, the committee stated that it is entitled to hold meetings when it was deemed necessary to do so.

Copies of resolutions made outside committee meetings to be circulated

The role and duties of the committee are detailed in Part 3 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). Part 3 Division 7 of the Accommodation Module details the administrative arrangements for committee meetings.

Section 33 of the Accommodation Module provides as follows:

Voting outside committee meetings [SM, s 35]
33.(1) A resolution on a motion before the committee is a valid
resolution of the committee, even though the motion is not passed at a
meeting of the committee called and conducted under division 7, if—
(a) notice of the motion is given to all committee members or, in an
emergency, as many members as it is practicable to contact; and
(b) a majority of all voting members of the committee agrees to the
motion.
(2) The notice must be given in writing, and the members’ agreement to

the motion must be given in writing but, in an emergency, the notice may

be given, and the member’s agreement expressed, orally or by another
appropriate form of communication.
(3) For the operation of section 32(1) and (2), the committee, in dealing
with a resolution under this section, is taken to deal with the resolution at a
meeting of the committee.

Section 35 of the Accommodation Module provides as follows:

ú
Minutes and resolutions [SM, s 37]
35.(1) A copy of all minutes of the committee, and a copy of each
resolution of the committee not included in minutes of the committee, must
be given individually to each lot owner, other than a lot owner who—
(a) has instructed the secretary that the lot owner no longer wishes to
be given copies of minutes and resolutions; and
(b) has not withdrawn the instruction.
(2) A copy required to be given under subsection (1) must be given
within 21 days after—
(a) for a copy of minutes—the holding of the meeting to which the
minutes relate; or
(b) for a copy of a resolution not included in the minutes of the
committee—the passing of the resolution.
(3) If there is a body corporate manager, and powers of the committee
have been delegated to the manager, a reference in this section to a
resolution of the committee extends to a decision of the manager made
under the delegated powers, other than a decision to pay an account—
(a) of a routine, administrative nature; or
(b) on the basis of an authorisation given by the body corporate in a
general meeting.

It would appear from the material that the committee has not always provided owners with a copy of minutes of meetings and a copy of resolutions not included in minutes. The committee has identified five resolutions not included in minutes of committee meetings, which it has now circulated to owners. It is therefore unnecessary for me to order that this be done. It is also not the practice of this office to make orders which merely restate the provisions of the Act or the relevant module. I therefore do not propose to order that in future the committee must circulate minutes of its meetings and copies of any resolutions not included in minutes, as there is a legislative requirement for this to be done. The committee should, however, be vigilant and ensure that owners are provided with such material. The committee should also note that there is no such thing as an “informal” committee meeting. If the committee meets at an appointed time and place, and matters relating to the administration of the body corporate are discussed, then that is a committee meeting. Accordingly, notice of the meeting must be given prior to the meeting taking place, and minutes must be produced and circulated after the meeting has taken place.

Appointment of body corporate manager

I note that the appointment of a body corporate manager was considered by the body corporate at the annual general meeting held on 29 September 2000, so I do not propose to deal further with the matter in this application. I am aware that a further application has been made to this office in respect of that appointment, but that will be the subject of a separate decision in that application in due course.

Failure to hold committee meetings

The committee must hold at least one committee meeting in any given year, as it is necessary for the committee to set the agenda for general meetings, and there is a legislative requirement for an annual general meeting. Beyond that, it will be a matter for the committee to determine the frequency with which it meets, depending upon the administrative workload of the particular scheme. I have not been provided with any evidence which satisfies me that the committee in this scheme has been derelict in its duty. I do not propose to make an order as to the frequency of committee meetings.