Cairns Aquarius [2000] QBCCMCmr 651 (12 December 2000)

P G DanielsREFERENCE: 0702-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1439
Name of Scheme:	Cairns Aquarius
Address of Scheme:	107 The Esplanade CAIRNS QLD 4870

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

Albert Finlay Marshall and Annette Patricia Marshall the co-owners of lot 3



P G DanielsI hereby order that the application for the following interim orders:

That the annual general meeting to be held on Friday 15 December 2000 be cancelled as it is void for irregularity.

If the order is granted, a further order that Cairns Body Corporate Management Pty Ltd, at its own cost, be required to call and hold the annual general meeting of the body corporate within two months of the date of the order which complies in all respects with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997.

is dismissed.1y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0702-2000

“Cairns Aquarius” CMS 1439

The applicants, Albert Finlay Marshall and Annette Patricia Marshall, the co-owners of lot 3, have sought the following final orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

If the interim order sought is not granted, then if motion 11 on the agenda of the annual general meeting (adoption of community management statement) is passed, that it be declared void for irregularity.

Further, if the interim order sought is not granted, then the election of the committee be declared void for irregularity and Cairns Body Corporate Management Pty Ltd, at its own cost, be required, within 2 months of the date of the order, to conduct the election of the committee in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997.

The applicants, have also sought the following interim orders of an adjudicator:

That the annual general meeting to be held on Friday 15 December 2000 be cancelled as it is void for irregularity.

If the order is granted, a further order that Cairns Body Corporate Management Pty Ltd, at its own cost, be required to call and hold the annual general meeting of the body corporate within two months of the date of the order which complies in all respects with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997.

Section 197(4) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

A notice has been forwarded to owners calling the annual general meeting for the Body Corporate on 15 December 2000 (the meeting).

The applicants seek interim orders cancelling the meeting and that a further meeting be called.

It will be observed that the interim orders are significantly wider than the final orders. The final orders relate to motion 11, adoption of a community management statement, and the election of a committee. The interim orders relate to the entire meeting.

The only ground raised in the application in respect of cancelling the whole meeting is that inadequate notice of the meeting has been given.

The notice is dated 24 November 2000. The applicants state that:

“(c) A number of lot owners are absentee owners who live interstate and overseas. ...

(d)

On 30 November 2000 we checked with 10 other lot owners to see if they had received the notice of meeting. Only two out of the ten lot owners had received the notice of meeting. Attached and marked “C” is a list of the owners we contacted with the details as to whether or not they received the notice of annual general meeting.”

Attachment C indicates when various owners received the notice. It also indicates that some owners had not received the notice as last as 30 November 2000.

The Committee has made a submission through Miller Harris Lawyers. It is stated in the submission that the notice was sent by post to lot owners on 24 November 2000. Miller Harris submit, on behalf of the Committee, that it is unreasonable to interpret the legislation as requiring the Secretary to anticipate the amount of time that would be required for the notice to be delivered in the course of post. Further, the meeting is overdue and, “There is an urgent need to deal with the accounts of the body corporate and to adopt a budget and strike levies for the current financial year.”

I do not propose to make the interim orders sought. In my view, it is not proper to cancel a general meeting prior to it occurring on the ground that inadequate notice has been given. The applicants state that the notice will be 14 to 16 days. This is not a case where the nature or urgency of the circumstances dictate that an interim order should be made. It is also relevant that the final orders only relate to two matters that will be considered at the meeting rather than the entire meeting.

I dismiss the application.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.