Stellmach Street Villa Units [2000] QBCCMCmr 629 (5 December 2000)

C G YOUNGREFERENCE: 0283-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17581
Name of Scheme:	Stellmach Street Villa Units
Address of Scheme:	7 Stellmach Street EVERTON PARK QLD 4053

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

Victor John WILSON, as a co-owner of Lot 9,



C G YOUNGI hereby order that the application for an order that the applicant Victor John WILSON, a co-owner of Lot 9, be declared chairperson of the body corporate for the purposes of calling a general meeting of the body corporate to engage a new Body Corporate Manager, is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0283-2000

“Stellmach Street Villa Units” CTS 17581

The applicant, Victor Wilson of Lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The order I am seeking is for me to be installed as the elected Chairperson for the 2000-1 period and to be authorised in writing by the Department to conduct an Extraordinary General Meeting for the purpose of selecting a new Management (I have the choice of 3) or retaining the present one under a revised “Instrument of Appointment” if suitable.

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)).

This application has generated an unwarranted amount of work and correspondence for both this office and others, caused mainly by the previous Body Corporate Manager company not properly dealing with the original notice inviting submissions. I would comment that Complete Body Corporate Management Pty Ltd have recently been put into receivership and the status of many hundreds of bodies corporate is in the process of being established.

Since the lodging of the application the body corporate has held an extraordinary general meeting on 22 August 2000 at which a fresh election was conducted and a new Body Corporate Manager engaged in lieu of Complete Body Corporate Management Pty Ltd (hereafter “CBCM”).

On Thursday 7 December 2000 I conducted a teleconference with the applicant Victor Wilson and Elizabeth Kennedy representing the respondent body corporate.

Mr Wilson stated that he was not concerned over not being the chairperson but merely wanted to make the point that as his was the only written nomination before the annual general meeting of 19 April 2000, he should have been declared elected unopposed. Miss Kennedy stated that she had forwarded a written nomination for chairperson to CBCM but it had wrongly omitted her name from the ballot. She said that with the votes of persons representing Lots 1, 2 and 3 she believed she would have secured the position.

Wilson said that he did not want to contest Kennedy’s election as chairperson at the recent meeting. In any case, if the election at the annual general meeting was found to be invalid and set aside, section 25(1) of the Standard Module regulations provides that the prior occupant of the position, which was Kennedy, would continue in office. Either way Kennedy is chairperson.

The other issue raised by Wilson in his application concerns the engagement of Strata Care Australia Pty Ltd (hereafter “SCAP”) as Body Corporate Manager on 22 August 2000. In his letter of 28 August 2000 he says in the first paragraph -

“I am not satisfied with the circumstances in which we now have Strata Care Australia Pty Ltd elected as the Managers of Stellmach Street Villa Units; but as the majority of owners at the Extraordinary General Meeting held on 22 August voted in favour, I must accept their decision. However I intend to watch closely how they operate.”

Though he accepts the appointment of SCAP, Wilson complains that he did not have a choice amongst different Body Corporate Managers as only SCAP was listed as a motion of the agenda. It was pointed out that owners may submit motions at any time and the secretary is obliged to include such motions, such as one from him to appoint an alternative, on the agenda of the next meeting.

With the opportunity now passed and a one-year contract entered into between that company and the body corporate, it was suggested to him that he should submit a motion or motions for one or more alternative Body Corporate Managers for consideration at the meeting to be held prior to the expiry of the current contract. As the annual general meeting is due in early 2001 (from information supplied) and the contract with SCAP does not terminate until August 2001, a meeting could be held just prior to the terminal date for the purposes of either renewing the contract or contracting with a competitor.

Both matters raised by the applicant have therefore been disposed of and I have therefore dismissed the application. A further point raised by Wilson during the teleconference was his concern that proper committee meetings should be held, including the provision of proper notice to both members and other owners as required by the legislation. Miss Kennedy said that she had every intention of calling and conducting committee meetings in the correct manner.2n