Pacific Lagoon Villas [2000] QBCCMCmr 669 (20 December 2000)

P G DanielsREFERENCE: 0522-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20419
Name of Scheme:	Pacific Lagoon Villas
Address of Scheme:	Helensvale Road HELENSVALE QLD 4212

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

Rod Lindsay Macleod the owner of lot 7



P G DanielsI hereby order that the application for an order that the Body Corporate hold a requested extraordinary general meeting is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0522-2000

“Pacific Lagoon Villas” CTS 20419

The applicant, Rod Lindsay Macleod, the owner of lot 7, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the Body Corporate hold a requested extraordinary general meeting.

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 applicant forwarded a letter to the Secretary dated 26 July 2000 in which he provided motions to be considered at an extraordinary general meeting. The motions relate to a rise in body corporate contributions and access through a gate to shops at the rear of the complex.

The applicant attached a letter signed by a number of owners that he states request the holding of a meeting. The document is headed, “Petition For Owners To Protest And Have A Meeting About Our ... Increase In Our Fees. We Wont Pay.”

The meeting has not been held.

The body corporate manager, Body Corporate Consultants, has made a submission on instruction from the Committee. Mr Ian Willis has represented the manager. Mr Willis relevantly states, “Mr Rod Macleod’s purported requisition to convene an EGM was personally handed to me by unit owner Mr Hank Vasterink. I read the requisition and the accompanying petition in the presence of Mr Vasterink. Mr Vasterink stated that he had personally gathered many of the signatures on the petition. I suspected that the petition was entirely separate from the requisition and enquired from Mr Vasterink who confirmed my suspicion that the motions were authored after the petition was gathered and signed. I then advised Mr Vasterink that the requisition was deficient because the persons who signed the petition did only that, sign the petition, they did not sign the requisition for the motions. I recommended that he re-draft the application by stating to the effect that the undersigned supported the attached requisition for 8 motions. To my knowledge this has not been achieved.”

Section 61 of the Body Corporate and Community Management (Standard Module) Regulation 1997 makes provision for a requested extraordinary general meeting as follows:

Requirement for requested extraordinary general meeting

61.(1) An extraordinary general meeting (a “requested extraordinary

general meeting”) of the body corporate must be called if a notice asking

for an extraordinary general meeting to consider and decide motions

proposed in the notice is—

(a) signed by or for the owners of at least 25% of all the lots included

in the scheme; and

(b) given to the secretary or, in the secretary’s absence, the

chairperson or, if the committee has not yet been chosen, given to

the original owner.

(2) The secretary may be presumed to be absent if a notice is given to the

secretary at the address for service of the body corporate, and no reply is

received within 7 days.

(3) A requested extraordinary general meeting must be called and held

within 6 weeks after the notice asking for the meeting is given.

(4) A requested extraordinary general meeting of the body corporate may

be called even though the body corporate’s first annual general meeting has

not yet been held.

It will be observed that the motions to be considered at a requested extraordinary general meeting must be proposed in the notice.

In this case, the document signed by owners provides no motions and no cross-reference to a document containing the motions. The notice states that owners want to have a meeting about the increase in contributions. That is not a motion.

Mr Willis gives evidence that Mr Vasterink told him that the motions in the letter from the applicant dated 26 July 2000 were authored after the petition was gathered and signed. As there is no conflicting evidence before me about the matter, I accept that evidence.

It was not necessary to hold a requested extraordinary general meeting pursuant to section 61 of the Regulation as the relevant notice did not propose the motions.

I dismiss the application.