Talbot Manor [2000] QBCCMCmr 665 (19 December 2000)

P G DanielsREFERENCE: 0711-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8610
Name of Scheme:	Talbot Manor
Address of Scheme:	18-22 Albert Street EAGLEBY QLD 4207

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

Albert John Harlen a co-owner of lot 10



P G DanielsI hereby order that a notice calling an extraordinary general meeting of the Body Corporate for Talbot Manor community titles scheme 8610 which meeting is to be held on 21 December 2000 (the meeting) is void and of no effect.

I further order that the Body Corporate for Talbot Manor community titles scheme 8610 must not hold the meeting.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0711-2000

“Talbot Manor” CMS 8610

The applicant, Albert John Harlen, a co-owner of lot 10, has sought the following interim and final order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

An injunction to stop the extraordinary general meeting (refer items 1 and 2 attached) called by Calabro Partners acting as receivers for Complete Body Corporate Management P/L at PO Box 7095, Riverside Centre Brisbane, Ph: 32298733 Fax: [phone], for “Talbot Manor Body Corporate” on 21/12/00 at 10.00 am.

Section 225(1) 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 of an extraordinary general meeting has been issued for the Body Corporate for Talbot Manor community titles scheme 8610 with the meeting date being 21 December 2000 (the meeting).

The applicant seeks an injunction to restrain the holding the meeting. The background is as follows.

Bradley Hellen and Richard Edwards of Calabro Partners have been appointed as receivers and managers to the scheme’s current body corporate manager and a number of other associated companies.

Bradley Hellen of Calabro Partners has forwarded a letter to lot owners enclosing the notice of the meeting. The agenda and voting papers provide for the engagement of a new body corporate manager.

The applicant indicates that Talbot Manor wants to move to self-management.

I have examined the notice of the meeting and the letter enclosing the notice. I have noted the following contraventions of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation):

1.	Motions are to be submitted to a general meeting by the Committee or a lot owner: section 41, 42(3)(c) and 45(2);

2.	The Committee must prepare the agenda for the meeting: section 45(1);

3.	The Secretary must call the meeting: section 40(a) unless paragraph (b) or (c) applies;

4.	A general meeting must be held not more than 15 km from scheme land: section 44 (sub-section (2) does not apply to this matter);

5.	Two individuals must be personally present at the meeting to establish a quorum: section 48(2)(a). In this case owners have been advised not to personally attend the meeting;

6.	A voter is entitled to vote on a motion personally: section 51(1) and 52(2);

7.	Written voting papers are required to be given to the Secretary before the start of the meeting or to the chairperson at the meeting: section 51(2) and 52(2);

8.	A chairperson must chair a general meeting: section 46(1) unless subsection (2) applies.

Additionally, Mr Hellen has encouraged owners to nominate himself as their proxy. Section 75(2) prohibits an associate of a body corporate manager from exercising a proxy. Associate is defined by section 256 of the Act. Additionally, section 75(4) prohibits a person exercising a proxy if an associate stands to gain a financial benefit from making an engagement as a body corporate manager. An associate can be a person mentioned in section 75(5). Even if sections 75(2), (4) and (5) did not apply, section 72(4)(b) would apply and prevent a person from holding more than one proxy. Additionally, section 72(5) provides that a completed proxy form is to be given to the Secretary.

I would not make the order sought due to any irregularities with proxies. I am uncertain if Mr Bradley has been appointed as anyone’s proxy. Additionally, it is not possible to determine what effect the proxy votes would have as the meeting has not been held.

The applicant has suggested that section 84 of the Regulation applies to this situation. Section 84 regulates the transfer of engagements. It has no application to this matter as the agenda and voting papers for the meeting provide for the engagement of a new body corporate manager. The applicant indicates he received the notice of the meeting 17 days prior to the date it is to be held. I have considered whether this constitutes a contravention of section 43 of the Regulation which requires 21 days notice. In the absence of evidence from other owners about when they received their notices I am unwilling to make such a finding.

However, I am satisfied that the meeting should not occur due to the various contraventions of the Regulation that have occurred as detailed above. I will order that the notice calling the meeting is void and that the Body Corporate must not hold the meeting.

The applicant has asked how the engagement of a body corporate manager can take effect from 18 December 2000 (as stated in the voting papers) when the meeting is to take place on 21 December 2000. It is not necessary for me to determine that matter given the orders I am making.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If it is considered that an appeal of this decision is warranted, then the appeal can be against the interim order.