River Mews [2001] QBCCMCmr 109 (22 February 2001)

P G DanielsREFERENCE: 0708-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27510
Name of Scheme:	River Mews
Address of Scheme:	79 Station Road LAWNTON QLD 4501

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

Marion Isobel De La Haye a co-owner of lot 22 and Dulcie Fretton the owner of lot 4



P G DanielsI hereby order that the application for the following order:

We require the Body Corporate of River Mews to pass on to us full information regarding expenditure including $600-00 per month allowed to the caretaker. This information is refused to us, and also to Mrs De La Haye’s solicitor.

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0708-2000

“River Mews” CTS 27510

The applicants, Marion Isobel De La Haye a co-owner of lot 22 and Dulcie Fretton the owner of lot 4, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

We require the Body Corporate of River Mews to pass on to us full information regarding expenditure including $600-00 per month allowed to the caretaker. This information is refused to us, and also to Mrs De La Haye’s solicitor.

In addition to the above the applicants have raised the following issue:

We have been advised by circular that nomination forms for the Committee and motions must be in by 31^st December 2000 for the A.G.M. No date has been set for this meeting in 2001. The A.G.M. for 2000 was held on 3^rd May which was five months after the nominations were sent in.

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 applicants have raised two matters. I will consider each of them separately.

The body corporate manager, McKinnon Body Corporate Administration, has made a submission in response to the application (the manager’s submission). I will refer to relevant parts of the manager’s submission.

Financial records

The applicants have stated the following in their application about the matter:

“We, the undersigned consider we are entitled to know details of what expenses we have each quarter when the Committee meets. We have been denied this information for two years.”

The manager’s submission states the following about access to the financial records and payment to the caretaker:

•	Information on expenditure has been refused

The owners have been invited to review these records at each meeting of the Committee. These financial records including the file containing the paid accounts, ledgers and the statements for the period are taken to each meeting and tabled. Any owner wishing to view these documents may attend these meetings. One owner has stated that as they are not a member of the Committee they can not speak at meetings.

Owners have been advised that while they can attend meetings they can not vote on any matter before the Committee. However, this does not prevent them attending to review the files.

•	$600.00 monthly allowance to the Caretaker.

The amount of $600.00 was included in the Caretaking Agreement which was approved by the Body Corporate at the First Annual General Meeting of the amalgamated Body Corporate for River Mews CTS 27510 held on 6 May, 2000.

The Caretaker, Murray Wilkinson, forwards a detailed invoice for reimbursement of funds each month. A copy of the invoice including all attachments is forwarded to the Chairperson immediately upon receipt of the account. This matter was addressed at the Annual General Meeting and the majority of owners present were satisfied with this procedure.”

Both applicants have replied to the manager’s submission. Mrs De La Haye relevantly states in her reply, “We have never at any time been invited to attend a meeting or to have access to any Account Books etc.” Mrs Fretton relevantly states in her reply, “In all truth, I have never been invited to a Committee Meeting during the time I have lived here but I have noticed on occasions the Committee report has stated that certain people have attended by invitation.”

An owner is entitled, on payment of the prescribed fee, to inspect body corporate records and obtain a copy of any record kept: section 162(2) and (5) of the Act and section 150 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Regulation). Those sections provide as follows:

(2) Within 7 days after receiving a written request from an interested

person accompanied by the fee prescribed under the regulation module

applying to the scheme, the body corporate must—

(a) permit the person to inspect the body corporate’s records; or

(b) give the person a copy of a record kept by the body corporate.

.........

(5) In this section—

“interested person” means—

(a) the owner, or a mortgagee, of a lot included in the scheme; or

(b) the buyer of a lot included in the scheme; or

(c) another person who satisfies the body corporate of a proper

interest in the information sought; or

(d) the agent of a person mentioned in paragraph (a), (b) or (c).

150.(1) For section 162(2) of the Act—

(a) the prescribed fee for inspection of the body corporate’s records

is—

(i) if the person inspecting the records is a lot owner—$10; or

(ii) if the person inspecting the records is not a lot owner—$20;

and

(b) the prescribed fee for obtaining a copy of a record kept by the

body corporate is 50c for each page supplied.

I note that both applicants state that they have not been invited to Committee meetings. It seems to me that now they are aware that they can attend Committee meetings and inspect the financial records, they may wish to adopt that process. Of course, they are not limited to those occasions. The right to inspect and obtain a copy of a record can be exercised at any time.

The Body Corporate is required to forward to owners with the notice of an annual general meeting a statement of accounts for the financial year showing the income and spending (or receipts and payments): section 104(1) and (6) of the Regulation. It is stated in the manager’s submission that the Body Corporate complies with section 104(1) and (6) and also forwards a balance sheet. Additionally, a copy of the auditor’s certificate in respect of the statement of accounts must be forwarded with the notice of the meeting unless the Body Corporate previously passed a special resolution not to have the statement audited: section 105 of the Regulation. The Committee must also prepare an administrative fund and sinking fund budget in respect of which contributions are fixed sections 92 and 93 of the Regulation. Copies of the budgets must be sent with the notice of an annual general meeting: section 92(6) of the Regulation. Other than these requirements, the Body Corporate does not have to automatically provide financial documents to owners although they do have rights to inspect and obtain copies of documents pursuant to section 162 of the Act (as discussed above).

In the circumstances, I do not propose making an order about the production of financial records. The applicants want to know details of expenses each time the Committee meets. It is indicated in the manager’s submission that the relevant records will be available for inspection at each meeting. The applicants can inspect the records on those occasions.

The applicants can also exercise their rights pursuant to section 162 of the Act. Should the Body Corporate not comply with section 162, then the matter can be the subject of a specific application to this office.


Nominations and motions

The complaint of the applicants is that they have been required to submit nominations to the Committee and motions a long time in advance of an annual general meeting. They relevantly state in the application, “Also, when our nominations and motions are available so long before the A.G.M. they are discussed by other members of the Body Corporate and dealt with before the meeting.”

The applicants make reference to having to submit motions by 31 December 2000 in respect of the Body Corporate’s annual general meeting on 6 May 2000.

The AGM in 2000 was actually the first AGM for the newly amalgamated scheme River Mews. It was held pursuant to orders made by an adjudicator in application 61-2000. The adjudicator allowed the meeting to be held within 3 months of 29 February 2000. I should also mention that the adjudicator ordered that the election of the committee would take place pursuant to sections 15 and 16 of the Regulation. Those sections provide for nominations to the Committee from the floor of the meeting or in writing to the chairperson and voting being restricted to those persons present at the meeting.

An AGM is normally meant to be held within 3 months of the end of a scheme’s financial year: section 58 of the Regulation. As this scheme was established on 28 January 2000 the end of the financial year is 31 December of each year: see definition of “financial year” in Schedule 4 Dictionary of the Act.

The Secretary of the Body Corporate must serve on each owner three to six weeks before the end of the financial year a notice inviting nominations to the Committee and submission of motions: sections 14 and 39 of the Regulation. The notice in this case is attached to the application and is dated 28 November 2000. That is within the three to six week timeframe.

I note that the manager’s submission states that it is anticipated that the AGM will be held on 10 March 2001.

I think that it is inevitable that nominations and motions will be discussed. It should be noted that the Committee must prepare an agenda for an annual general meeting: section 43 of the Regulation. Whatever discussion takes place, the important matter is that owners are given an opportunity to submit nominations and motions and that the Body Corporate in general meeting determines the matters. There is no evidence before me to indicate a failure of the Body Corporate in respect of this matter.

I have examined the complaint of the applicants and do not think it is necessary to make any order.

I dismiss the application.