Gemview Court [2001] QBCCMCmr 210 (9 April 2001)

RA MeekREFERENCE: 0058-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20898
Name of Scheme:	Gemview Court
Address of Scheme:	410 Chatswood Road SHAILER PARK QLD 4128

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

Oliver Black and Patricia May Black, the owners of lot 6


RA MeekI hereby order, by way of declaration, that the EGM of the body corporate of Gemview Court convened for Tuesday 19 December 2000, was correctly adjourned to the same time and place on Tuesday 26 December 2000.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0058-2001

“Gemview Court” CTS 20898

The applicants, Oliver Black and Patricia May Black, the owners of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We would like the commissioner to give a ruling whether the EGM on the 19^th December 2000 should have been adjourned.

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. In essence they dispute the fact that the meeting was correctly adjourned. They consider there was no basis for this. The minutes of meeting records that the EGM to be held on Tuesday 19 December 2000 was “pursuant to section 48 ... adjourned to 26 December 2000 at 8.30 at the same location”. At the adjourned meeting held on 26 December 2000, the owners of lots 1, 4, 5 and 6 were all represented by voting paper. Section 48 provides as follows –

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Quorum for general meetings
48.(1) A voter is taken to be present at a general meeting if the voter is present at the meeting personally, by proxy or by written voting paper.
(2) A quorum at a general meeting is at least 25% of the number of voters for the meeting, except that—
(a) if the number of voters for the meeting is 3 or more, 2 individuals must be present personally; and
(b) if the number of voters for the meeting is less than 3, there is a quorum if at least 1 individual is present personally.
(3) If there is not a quorum within 30 minutes of the time scheduled to start the meeting, the meeting must be adjourned to be held at the same place, on the same day and at the same time, in the next week.
(4) If at the adjourned meeting a quorum is again not present within 30 minutes of the time scheduled to start the adjourned meeting, the persons present (whether personally or otherwise) form a quorum if—
(a) the chairperson is present personally; or
(b) the chairperson is not present personally, but a body corporate manager, with the delegated powers of the chairperson, is present personally.
(5) Despite subsection (3), if it is not practicable to hold the adjourned meeting at the same place, it may be held at another place if all lot owners are advised personally or in writing of the new location before the adjourned meeting is to start.
(6) For this section, 2 or more co-owners of a lot are counted as 1 voter.

The body corporate manager has advised the applicants in writing that –

In so far as the EGM which was held on 19 December 2000 is concerned, we wish to advise that this meeting was adjourned for seven days as a quorum was not present. The quorum for a body corporate general meeting requires two people present in person representing separate lots as well as 25% of the owners being represented either in person or by voting paper. As you are co-owners of one lot your presence would represent one lot only. The presence of the body corporate manager is not counted in the quorum as the body corporate manager cannot hold a proxy and does not represent any lot.

The applicants state in part in their grounds –

Present at meeting 19.12.2000 :

Penny Tharenou – Secretary / Treasurer Premier BCM

Oliver Black – Present by voting paper – one vote

Patricia Black - Present by voting paper

John Rodwell – Voting Paper

N&P Pagonis – Voting Paper

Coralie Coleman – Voting Paper

This evidence indicates that the two applicants were the only owners personally present at the meeting. Subsection (6) provides that 2 or more co-owners of a lot are counted as 1 voter. This means that, on the applicant’s own evidence, there was one voter personally present at the meeting on 19 December 2000. There were however an additional three voters by voting papers, making a total of 4 voters altogether for the meeting. This would satisfy the requirement of 25% of voters to be at the meeting, however it does not satisfy the further requirement of section 48(2)(a) which provides that if the number of voters for the meeting is 3 or more, 2 individuals must be present personally. There was not a quorum at the meeting on 19 December 2000 because there was only one voter personally present.

In the circumstances, the manager was correct to adjourn the meeting as per subsection (3) which states that the meeting must be adjourned to be held at the same place, on the same day and at the same time, in the next week. This appears to have occurred. At the adjourned meeting, there is no requirement for voters to be personally present.

I do have one query to raise. If the body corporate manager in question is seriously concerned with the requirement for a quorum as provided for in section 48, why then does the notice of meeting prepared by it state, in capital letters, “NO ATTENDANCE IS NECESSARY”. This clearly is intended to discourage the attendance of individual voters who are required to form a quorum. In the circumstances, it would be interesting to know the real motivation for the adjournment of the meeting. It seems inconsistent to me that a notice of meeting would so clearly include the above statement, and then that the meeting in question be adjourned due to there not being a quorum because an insufficient number of voters were personally present.
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