Regal Court [2000] QBCCMCmr 97 (23 February 2000)

RA MeekREFERENCE: 0670-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13957
Name of Scheme:	Regal Court
Address of Scheme:	24 Little Norman Street SOUTHPORT QLD 4215

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

Alex Kels, the co-owner of lot 5

RA MeekI hereby order that the application by Alex Kels, the co-owner of lot 5, for an order that certain members of the committee be removed from their position, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0670-1999

“Regal Court” CTS 13957

The applicant Alex Kels, the co-owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Removal from their positions of the following persons:

1.	Mrs C Tomlinson from her position as chairperson;
2.	Mr H Coote from his position as member of committee;
3.	Ms Marie J Peterson from her position as secretary / treasurer.

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)).

I do not intend to restate the applicant’s grounds. These are known to all parties via the submission process. I do however intend to quote part of the applicant’s conclusion –

As our body corporate badly needs a just, honest, unbiased Management and, most importantly, reasonably low levies, it will be necessary to turn the clock back one year to the time prior to the meeting on 16.09.98 when such management had existed. This could only be done if, and when the commissioner would rule all motions that were passed at the meetings on 16.09.98 and on 25.09.99 to be void and no longer relevant, because of the manner in which “elections” at those meetings were conducted, the only exception being the unanimous endorsement for me to carry on as Secretary – Treasurer for another twelve months at the meeting on 16.09.98. If such ruling is granted, I will immediately take over from Ms Peterson the management of our body corporate and arrange a meeting to elect a new committee. Such ruling from the commissioner will immediately restore stability and justice for all of use. The new levy will then be, as in 1998, $100.00 instead of $137.00 at present, so everyone will benefit financially. May I add that I am well qualified to run our body corporate efficiently. During the 5.5 years as Secretary / Treasurer ....

In response to the application, I have received submissions from several other owners within the scheme, as well as the current secretary / treasurer, Marie Peterson. The applicant has also put in further replies to the submissions of other owners.

I intend to dismiss this application, as I consider it to be essentially without substance. The application, and submissions in response to the application, contain a very long and exhausting list of accusations and counter accusations. It is clear that there are currently two camps within this body corporate. The applicant for many years appears to have enjoyed a position of authority within the body corporate. However, the applicant of his own volition resigned from the positions of secretary / treasurer. The applicant now clearly seeks to be re-appointed to those positions, but perhaps knows that this will not happen by election given the current attitude of the majority of owners, and their view of his previous performance in such positions. The applicant has therefore sought the dismissal of the current committee and the restatement of himself to the positions of secretary and treasurer, by order of this office. This however will not occur.

There are provisions in the standard module by which members of the committee might be removed. In addition to the other reasons for termination of a person’s appointment to the committee, section 25(2)(f) provides that a committee member can be removed from office by ordinary resolution of the body corporate. Additionally, a person can become a member of the committee by nominating, or being nominated, for such position, and thereafter being duly elected. I refer the applicant to these provisions, and suggest to him that he should engage in the democratic process for the determination of membership of the committee.

Further as to the various miscellaneous allegations of illegality made by the applicant, it seems to me that similar allegations are made against him in the carrying out of his former position of secretary / treasurer. In the circumstances, I do not consider that these various allegations should be investigated further.

I consider that the applicant, if he continues to be dissatisfied with the current management of the body corporate, should seek to obtain the support of a majority of owners to his views. Until this occurs, the applicant must accept that his position within this body corporate is a minority one, and that he cannot seek to set the agenda for this body corporate.