Tawarri Lodge [2000] QBCCMCmr 657 (14 December 2000)

RA MeekREFERENCE: 0541-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11779
Name of Scheme:	Tawarri Lodge
Address of Scheme:	10 Tawarri Crescent MOOLOOLABA QLD 4557

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

Tim Mills, the co-owner of lot 4



RA MeekI hereby order that the application by Tim Mills, the co-owner of lot 4, for orders that

• The declaration that the AGM of Tawarri Lodge which was held on Saturday 16^th September 2000, was an unauthorised meeting.

• That the body corporate of Tawarri Lodge holds a committee meeting correctly called as per the Body Corporate and Community Management Act to decide the management of the body corporate.

• That any costs incurred in actions taken by the firm known as “The Body Corporate Professionals” prior to this correctly called committee meeting be the responsibility of that firm, and not the body corporate of Tawarri Lodge.

• Any cost incurred to return the address of the body corporate, etc., should the body corporate select another organization to manage their affairs, be the responsibility of the firm known as “The Body Corporate Professionals”;

is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0541-2000

“Tawarri Lodge ” CTS 11779

The applicant Tim Mills, the co-owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

• The declaration that the AGM of Tawarri Lodge ... which was held on Saturday 16^th September 2000, was an unauthorised meeting.

• That the body corporate of Tawarri Lodge ... holds a committee meeting correctly called as per the Body Corporate and Community Management Act to decide the management of the body corporate.

• That any costs incurred in actions taken by the firm known as “The Body Corporate Professionals” prior to this correctly called committee meeting be the responsibility of that firm, and not the body corporate of Tawarri Lodge.

• Any cost incurred to return the address of the body corporate, etc., should the body corporate select another organization to manage their affairs, be the responsibility of the firm known as “The Body Corporate Professionals”.

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)).

In the supporting grounds, the applicant states that –

Several members of the committee of the body corporate of Tawarri Lodge, without calling a meeting, contracted a body corporate management service to organise and run the AGM of the body corporate.

The applicant then provides his view of the background to this event, most of which I consider to be irrelevant.

In considering the determination of this application, I have the benefit of submissions from three of the remaining four owners, and from the now appointed body corporate manager.

I consider the facts relating to this dispute are fairly straight-forward and not really in dispute. I seems that –

• The applicant resigned his position as secretary/treasurer the day before the AGM proposed for 6 August 2000;

• The applicant had submitted a voting paper for the AGM and was not personally in attendance;

• The meeting convened, and rather than proceed to consider the agenda, the meeting essentially became a committee meeting, where the parties in attendance determined to postpone the AGM given the resignation of the applicant and to take steps to appoint a body corporate manager to hence forth manage the affairs of the body corporate;

• A manager known as Body Corporate Professionals was approached to “call and hold the AGM for our body corporate and send the relevant Notice of Meeting to all owners, based on the agenda provided to you.”;

• The manager was directed to also include on the agenda of the AGM “a notice of appointment of your firm as professional body corporate managers for a term of one (1) year.”;

• The manager in due course called the AGM, and this meeting was held on 16 September 2000. The minutes of the AGM note that all 5 owners were represented at the meeting and that a motion to appoint the manager for a term of one year was carried by three of the five owners.

The applicant now seeks that the AGM be invalidated, on the basis that there was an irregularity in its calling, and that the body corporate incur no liability in respect of the allegedly irregular meeting.

I intend to dismiss this application. Yes, I could find irregularity in what occurred here if I wanted, and certainly, I could invalidate the meeting if all I wanted was to apply the requirements of the legislation, without reference to other relevant factors. However, the role of an adjudicator is to make orders for the just and equitable resolution of a dispute. If made, the orders sought by the applicant would involve simply an adherence to the absolute strict requirements of the legislation, and would have a detrimental impact on this body corporate. Perhaps the applicant apparent success in a previous application to this office has resulted in a belief that he will invariably succeed in such matters. I suggest that in future the applicant weigh the alleged irregularity against the alleged damage.

In the letter by the chairperson seeking the assistance of the manager to convene the meeting, the chairperson explains –

I also confirm that due to the resignation of the secretary / treasurer at short notice, the remaining owners that attended the meeting set down for 6/8/00 were unable to effectively consider the motions in the agenda due to a lack of direction and understanding of the requirements of the Cody Corporate Act.

I consider that this statement basically explains the entire scenario. On the resignation of the applicant as Secretary / Treasurer, the remaining members of the committee and body corporate generally did not consider that they had sufficient expertise to manager the secretarial and other functions of the body corporate. The decision taken by three of the owners at the aborted AGM was to seek outside assistance with this.

The AGM was duly held on Saturday 16 September 2000, with the assistance to the manager. As I indicated previously, all five owners were represented at this meeting. The applicant has not indicated to me at any point how what transpired has detrimentally affected him personally, or the operation of the body corporate generally. For example, there is no suggestion that the meeting convened by the manager was called without sufficient notice, or that the applicant’s motions were not included on the agenda. Moreover, there is no evidence of irregularity in the appointment of the manager at the meeting. The motion complies with section 104 of the standard module, and the applicant has not suggested that the terms of the proposed engagement were not included with the notice of meeting, as the motion indicates.

In all the circumstances, the application is without merit and I intend to dismiss it.

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