Castlebrook [2001] QBCCMCmr 10 (10 January 2001)

C G YOUNGREFERENCE: 0563-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19372
Name of Scheme:	Castlebrook
Address of Scheme:	18 Denver Road CARSELDINE QLD 4034

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

Carl Raymond HATTE, a co-owner of Lot 55,



C G YOUNGI hereby order that the application for an order that Resolutions 12 and 13 passed at the annual general meeting held on 13 April 2000, concerning the management agreement and letting agreement respectively, is dismissed as having already been decided by Adjudicator’s Order 530-2000 of 15 December 2000.

I further order that Resolution 2 passed at the annual general meeting of 13 April 2000, requiring that voting papers be delivered to the secretary no less than twenty-four hours before the commencement of a body corporate general meeting, is invalid. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0563-2000

“Castlebrook” CTS 19372

The applicant, Carl Hatte of Lot 55, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. To order that committee resolutions 14 and 15 purportedly passed at the budget committee of the Castlebrook Body Corporate on the 2^nd March 2000 were at all times void. Consequently that annual general meeting resolutions numbers 12 and 13 (exact copies opf the committee resolutions) as presented to the owners on the agenda for the Annual General Meeting 13 April 2000 were therefore at all times void.

2. To order that committee resolution number 2 purportedly passed at the budget committee of the Castlebrook Body Corporate on the 2^nd March 2000 was at all times void. Consequently that annual general meeting resolution number 2 (exact copy of the committee resolution) as presented to the owners on the agenda for the Annual General Meeting 13 April 2000 was therefore at all times void.

The motions referred to above, as they appeared in the voting paper for the annual general meeting of 13 April 2000, are as follows -

MOTION 2: That pursuant to section 52(1) of the Body Corporate and Community Management (Standard Module) Regulation completed voting papers must be given to the Secretary of the Body Corporate or Body Corporate Manager no less than twenty-four (24) hours before the commencement of the meeting.

MOTION 12: That the Management Agreement between the proprietors of Castlebrook Group Titles Plan No.3936 and AV Jennings Holding CAN 004 287 003 dated 5 October 1994 and subsequently assigned to Garry Noel Leaman by Deed of Assignment dated 1 October 1996 be surrended and that a Deed of Termination in the form of that circulated with this motion and as approved by ythe body corporate’s advisors be executed under the common seal of the Body Corporate by any two members of the Committee AND THAT the Body Corporate enter into a new Deed of Engagement of Manager between the Body Corporate for Castlebrook Community Titles Scheme 19372 and Garry Noel Leaman for a period of five years beginning 4 May 2000 together with an option for renewal of a further five years and that a Deed of Engagement, in the form of that circulated with this motion and as approved by the body corporate’s advisors, be executed under the common seal of the Body Corporate by any two members of the Committee. (Proposed by the Committee) (Ordinary Resolution).

MOTION 13: That the Letting Agreement between the proprietors of Castlebrook Group Titles Plan No.3936 and AV Jennings Holding CAN 004 287 003 dated 14 January 1994 and subsequently assigned to Garry Noel Leaman by Deed of Assignment dated 1 October 1996 be surrended and that a Deed of Termination in the form of that circulated with this motion and as approved by ythe body corporate’s advisors be executed under the common seal of the Body Corporate by any two members of the Committee AND THAT the Body Corporate enter into a new Deed of Engagement of Letting Agent between the Body Corporate for Castlebrook Community Titles Scheme 19372 and Garry Noel Leaman for a period of five years beginning 4 May 2000 together with an option for renewal of a further five years and that a Deed of Engagement, in the form of that circulated with this motion and as approved by the body corporate’s advisors, be executed under the common seal of the Body Corporate by any two members of the Committee. (Proposed by the Committee) (Ordinary Resolution).

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)).

At the outset I need to state that the first order sought by the applicant, namely the invalidation of resolutions made in respect of Motions 12 and 13 at the annual general meeting of 13 April for new management and letting agreements respectively, has already been considered by an Adjudicator in another application. Order 530-2000 was issued on 15 December 2000 in respect of an application by Ilse Troester of Lot 3. The order, amongst other things, dismissed that part of the application which sought the invalidation of the two motions. I note that the Troester also relied on the same central ground concerning the misleading nature of the comment that the agreement had been approved by advisors of the body corporate.

As the matter has already been considered and decided in that order, I cannot revisit the matter. The avenue available to persons dissatisfied with the order, and who are eligible to appeal, is to appeal that order. I have therefore dismissed the first order sought on the ground that it has already been decided by an adjudicator.




Before proceeding to determine the second order, there is a matter of jurisdiction I need to address. The resolution subject of the dispute was passed at the annual general meeting which was held on 13 April, some 5 months before the application was lodged at this office. Section 193 of the Act provides that applications seeking to invalidate a resolution passed at a general meeting of the body corporate must be lodged within 3 months of the resolution. The section also provides, however, that an adjudicator may waive the requirement where good reason for delay exists. As the resolution seeks to introduce a continuing voting procedure that is in contravention of the legislation, good reason, in my opinion, exists without need for any submission in claim of waiver.

In regard to the second order sought, I agree with the submission of the applicant that the resolution passed in respect of Motion 2, namely that voting papers must be in the hands of the secretary at least 24 hours before the start of a meeting, is in contravention of section 52(1) of the Standard Module. The discretion for bodies corporate to change certain voting procedures only refers to those contained within the section. Accordingly, the ability to lodge a voting paper with the secretary before the start of a meeting as contained in section 51 of the Standard Module (a different section) cannot be altered by resolution of a body corporate.

The committee has realised its error in putting such a motion. However, the applicant complains that the committee only wishes to deal with the matter by a further motion to rescind the resolution at the next (2001) annual general meeting. This is confirmed in the chairperson’s submission to the application where she states that it would put the issue to the next Annual General Meeting and let the majority decide again. She further says that the committee put the motion with the best of intentions, namely to overcome the delays caused by owners delivering their voting papers just before the meeting. Earlier delivery would allow the secretary to enter the votes into the voting tally sheet prior to the meeting. The legislation does allow for this but requires that voting papers must be accepted up to the commencement of a meeting.

The point of course is that the resolution, Resolution 2, is invalid for contravention of the legislation and nothing further needs to be done other than to recognise that invalidity. No motion of rescission is necessary because the body corporate has no option in the matter; the incorrect procedure simply cannot stand.

My order is therefore that the resolution passed at the general meeting is invalid. An order to invalidate the same motion decided by the committee is unnecessary.2n