Magic Mountain Apartments [2000] QBCCMCmr 614 (27 November 2000)

P G DanielsREFERENCE: 0661-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16977
Name of Scheme:	Magic Mountain Apartments
Address of Scheme:	Great Hall Drive NOBBY BEACH QLD 4218

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

Harry Oldfield a co-owner of lot 18



P G DanielsI hereby order that the application for an order:

To declare Motion No. 3 on the agenda for the Extraordinary General Meeting of the Body Corporate called for 1 December 2000 out of order.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0661-2000

“Magic Mountain Apartments” CTS 16977

The applicant, Harry Oldfield, a co-owner of lot 18, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

To declare Motion No. 3 on the agenda for the Extraordinary General Meeting of the Body Corporate called for 1 December 2000 out of order.

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 Body Corporate for Magic Mountain Apartments is holding an extraordinary general meeting on 1 December 2000 (the meeting).

Motion 3 on the voting papers for the meeting provides as follows:

“DECLARE COMMITTEE POSITIONS VACANT – ATTACHMENT “A”

Proposed by Owners/Co-Owners of Lots 1, 2, 3, 9, 10, 11, 13, 17, 22, 23, 25, 36, 44, 53, 62, 63, 64, 65, 67, 69 and Lot 73

(Ordinary Resolution)

That the positions of Chairperson and Ordinary Members of Committee be declared vacant and the vacant positions on Committee be filled pursuant to section 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

NOTE TO MOTION

The current Committee consists of 4 persons who were the only nominees and who were subsequently elected at the Annual General Meeting. The legislation provides for a maximum of seven persons to be elected as Members of Committee. This motion is proposed to give owners who now wish to serve on the Committee for the remainder of the year the opportunity to do so.”

It will be observed that the motion provides for the vacation of all members of the Committee. The procedure for filling the vacancies as stated in the motion is provided by sections 14 and 15 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) which provide as follows:

Modified nomination procedures for election of committee at first

annual general meeting

14.(1) This section states how individuals are nominated for election as

an executive or ordinary member of the committee if, under this division,

an election must be held at the first annual general meeting for the scheme.

(2) The nominations are to be given at the meeting, and must be given in

either of the following ways—

(a) orally from the floor of the meeting;

(b) in writing handed to the person chairing the meeting.

Modified election procedures for election of committee at first annual

general meeting

15. If, under this division, an election must be held at the first annual

general meeting for the scheme—

(a) the duties imposed on the secretary under this division must be

carried out by the original owner; and

(b) the provisions of this division for the election of the committee

are modified to the extent that they are inconsistent with the

following—

(i) no ballot-papers need be issued before the meeting;

(ii) to be entitled to vote, a person must be present at the

meeting.

The applicant has provided several grounds in support of the orders sought. I will consider each of these grounds.

The first ground is that, “No section of the Regulations permits a motion to declare vacant all the positions of Chairperson and Ordinary Members of Committee.”

Section 25(2)(f) provides a power to remove a Committee member from office. I will set out the entire section 25(2):

(2) However, a member’s position becomes vacant if the member—

(a) dies; or

(b) becomes ineligible to hold the position; or

(c) resigns by written notice given to the chairperson or secretary; or

(d) is absent from 2 consecutive meetings of the committee without

the committee’s leave; or

(e) is convicted (whether or not a conviction is recorded) of an

indictable offence; or

(f) is removed from office by ordinary resolution of the body

corporate.

In my view that power can be exercised to remove all members of a Committee.

The next ground is that sections 14 and 15 of the Regulation apply only to the first annual general meeting and do not apply to the meeting.

The Regulation does not provide a procedure in respect of filling vacancies on the Committee that have been created as a result of the removal of Committee members. It is necessary for the Body Corporate to determine a procedure. In this case, it has been proposed via motion 3 that the Body Corporate adopt the procedure as provided by sections 14 and 15 of the Regulation. I would not restrict a Body Corporate choosing such an option because sections 14 and 15 normally operate at first annual general meetings.

The next ground relates to the fairness of the procedure adopted. The applicant states, “If the proposed procedure were to be used, the many owners who will not be able to be present at the meeting would be disenfranchised (less than 20% of lots were personally represented at the most recent A.G.M). The intent of the present Regulations (as evidenced by Section 13) appears to be to ensure that such disenfranchisement should no longer be possible. It would not be just and equitable to allow this motion to stand.” In my view, owners not present at the meeting will not be disenfranchised as they have the opportunity to vote on the motion which includes a procedure for electing a new Committee. If they are dissatisfied with the procedure then they can vote against the motion.

The final ground of the applicant relates to how the motion will be perceived given the status of one of the owners proposing the motion. The applicant relevantly states, “There are only two of these whose voting intentions I am in a position to know and they are going to vote no to these motions. My concerns are:

1.

One of the lot owners is the former chairman of the body corporate, Tom Taunt, who is respected by all. Recognising Tom’s lot number on the voting paper, people may conclude that, if Tom is supporting the motion, they should also. If they cast a postal vote, they may not be present at the meeting to hear Tom set the record straight and a fair vote will not occur. (My understanding is that Tom said that he would have no objection to having a meeting but he did not support the motions.)

2.

How many other owners have been misrepresented? At least two and perhaps many of the people who have been prepared to support a meeting are listed on the voting paper as supporting the motions.”

The voting papers for the meeting clearly show that various owners have proposed the motion. It does not state that those owners also support the motion although I accept owners may think that a person proposing a motion also supports the motion. However, in my view, if those owners proposing the motion do not want other owners to think they are supporting the motion, then it is a matter for them to effectively communicate that position with the other owners. Additionally, owners can contact Mr Taunt or any other proposer of the motion to have the matter clarified.

I note that the applicant requested mediation if it would have the effect of changing the motion to provide for an increase in the number of committee members to 7 rather than to dismiss the current members. The applicant states he had been told this was the desire of the proposers of the motion. Mediation would not permit this to occur. Consequently, I have decided to make an order in respect of this application particularly given that the meeting will occur in the near future.

There is no basis to make the order sought. I dismiss the application.