Viscount Towers [2000] QBCCMCmr 599 (21 November 2000)

P J HANLYREFERENCE: 0433-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11865
Name of Scheme:	Viscount Towers
Address of Scheme:	1 First Avenue SURFERS PARADISE QLD 4217

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

Rhys Barrie Morris and Joan Morris, the owners of lot 3, and the resident unit managers



I hereby order that the body corporate manager shall within 7 days of the date of this order, forward a postal ballot to all owners to enable owners to consider the motion submitted by the owners of lot 3 on 5 June 2000 in relation to the installation of fitness equipment in the solarium.

I further order that owners shall be allowed a period of 21 days, from the date on which the postal ballot is sent out, within which to return the postal ballot to the secretary.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0433-2000

“Viscount Towers” CTS 11865

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

That the body corporate manager be directed forthwith to conduct a postal ballot on the enclosed motion (relating to the installation of gymnasium equipment in the solarium).

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 applicants state that on 5 June 2000 they submitted a motion for the reinstatement of gymnasium equipment in the solarium, and this motion was acknowledged as having been received by the body corporate manager on 6 June 2000. The applicants further state that the motion was not included on the agenda of the next extraordinary general meeting, which was held on 8 July 2000.

The body corporate committee and the body corporate manager were invited to respond to the application. The body corporate manager responded on behalf of both parties. The body corporate manager provided some historical background to the matter, and then acknowledged that due to an oversight the motion proposed by the applicants was not included on the agenda of the extraordinary general meeting held on 8 July 2000. The body corporate manager stated that she is prepared to hold another extraordinary general meeting, at no cost to the body corporate, to enable the motion to be considered.

The applicants responded to the submission from the body corporate manager, pointing out certain inaccuracies within the submission, such as the reference to the amount of usable space in the solarium after the gymnasium equipment was put in place. I am, however, principally concerned with whether the motion which was proposed by the applicants should be considered by owners.

Section 41 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) provides as follows:
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Opportunity to submit agenda motions

41.(1) A member of the body corporate may at any time submit a

motion for consideration at a general meeting of the body corporate and, if a

motion is submitted, including in response to an invitation under

subsection (3), it must, subject to subsection (2), be included on the next

general meeting agenda on which it is practicable to include the motion.

(2) A motion may be included on the agenda for an annual general

meeting only if the secretary receives the motion before the end of the body

corporate’s financial year immediately preceding the meeting.

(3) If notice is forwarded to members of the body corporate inviting

nominations for committee member positions to be filled at an annual

general meeting of the body corporate, the members must also be invited to

submit motions for inclusion on the agenda for the meeting.

As the motion proposed by the applicants was submitted on 5 June 2000, and acknowledged by the body corporate manager on 6 June 2000, it should have been included on the agenda of the extraordinary general meeting held on 8 July 2000. As it was not included on that agenda, it should have been included on the agenda of the annual general meeting, which was held on 18 November 2000.

I spoke with the body corporate manager on 20 November 2000, and requested a copy of the minutes of meetings which have been held since 8 July 2000. The body corporate manager advised me that there have been two committee meetings, and the annual general meeting held since 8 July 2000. The body corporate manager also advised me that there is a further extraordinary general meeting scheduled for 8 December 2000 to consider motions relating to the painting of the lift foyers, the reception foyer and the solarium. The body corporate manager advised me that the minutes of the annual general meeting have not as yet been completed, but she forwarded the minutes of the two committee meetings, and a copy of the voting papers for the annual general meeting and for the forthcoming extraordinary general meeting.

I note that at the committee meeting held on 26 August 2000, the committee resolved to include the motion relating to the gymnasium equipment being placed in the solarium, on the agenda of the annual general meeting on 18 November 2000. I further note that at the committee meeting held on 7 October 2000 the committee resolved that the body corporate manager send a submission to this office in respect of this application. I further note that the motion proposed by the applicants in relation to the placement of gymnasium equipment in the solarium was not placed on the agenda of the annual general meeting held on 18 November 2000, and has not been placed on the agenda of the extraordinary general meeting to be held on 8 December 2000.

I do not propose to order that a further extraordinary general meeting be held to consider the applicants’ motion, even though the body corporate manager has stated that she would hold such a meeting at no cost to the body corporate. I am also not prepared to order that the motion be considered at the extraordinary general meeting which has been called for 8 December 2000, as that would not allow sufficient time after an amended notice of meeting was given (since section 43 of the Standard Module requires that a general meeting must be held at least 21 days after notice of the meeting is given.)

I have therefore decided to order that the body corporate manager shall within 7 days of the date of this order, forward a postal ballot to all owners to enable owners to consider the motion submitted by the owners of lot 3 on 5 June 2000 in relation to the installation of fitness equipment in the solarium. I have further ordered that owners shall be allowed a period of 21 days, from the date on which the postal ballot is sent out, within which to return the postal ballot to the secretary. By this means, I have endeavoured to contain costs (no matter who is paying for those costs) and I have also endeavoured to keep to a minimum the number of times owners have to attend at meetings.

I note that the body corporate manager foreshadowed that the motion would be a resolution without dissent, “as the equipment would take away common property space belonging to the body corporate”. I do not consider that the motion would require resolution without dissent. The equipment, as I understand it, would be available freely to all owners and occupiers of lots within the scheme. If that is the case, then there is no element of exclusive use involved. I also do not consider that the motion would require special resolution, as the equipment is not an improvement to common property, whether by the body corporate or an owner, since an improvement is defined in the Act as including the erection of a building and a structural change or addition. It seems that the motion would only require an ordinary resolution.

There are, however, matters to which, in my view, the body corporate must turn its attention at the same time that it considers the proposed motion, and these include questions of maintenance of the equipment and public liability. It is not appropriate for me to advise on these matters, as the issue is not before me, however, I consider that the applicants and the body corporate would be well advised to obtain their own legal advice on such matters. Furthermore, it should be noted that section 136 of the Standard Module requires a minimum of $10 million public risk insurance to be held by the body corporate. I would have thought that a similar minimum insurance would be required if it is determined that the applicants should hold such cover.
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