Campari [2001] QBCCMCmr 239 (8 May 2001)

C G YOUNGREFERENCE: 0265-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5636
Name of Scheme:	Campari
Address of Scheme:	45 Galloway Drive ASHMORE QLD 4214

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

Elaine Charlotte CROFT, the 0wner of Lot 6,



C G YOUNGI hereby order that the application for the following orders –

1. That the EGM called for 7^th May 2001 be declared invalid.

2. That the management of the body corporate be put in the hands of a professional body corp. manager.

3. That the secretary Mr Rushton and the treasurer Mr Merton be directed to follow correct procedures and be prevented from harassing myself and other absent owners,

is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0265-2001

“Campari” CMS 5636

The applicant, Elaine Croft of Lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

4. “That the EGM called for 7^th May 2001 be declared invalid.

5. That the management of the body corporate be put in the hands of a professional body corp. manager.

6. That the secretary Mr Rushton and the treasurer Mr Merton be directed to follow correct procedures and be prevented from harassing myself and other absent owners.”

The applicant has also sought the following interim order of an adjudicator, quote -

“That the EGM called for 7^th May 2001 be declared invalid due to –

a. short notice – dated 20^th April, received 23^rd April.

b. motions 1 to 5 not proposed by the committee and are thus unauthorised.”

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

A copy of the application was forwarded to Graham Rushton, secretary and owner of Lot 11, and Paul Merton, treasurer and owner of Lot 9, who are both named as respondents in the matter by the applicant Croft. Both were invited to make a written response to the matters raised by Croft in the application. A joint response in two parts, both dated 3 May 2001, was submitted by them.

I also sought a teleconference with the parties in order to better understand the facts of the matter and the position of the parties. Although Croft had refused to participate in a teleconference in respect of Order 184-2001, she did participate in a three-way teleconference with Rushton, representing both himself and Merton, and myself on 4 May 2001.

As the meeting subject of the interim order was to be held on Monday 7 May, requiring that any meaningful order would have to be given by Friday 4 May, I concluded the teleconference with verbal advice to the parties that the application for an interim order to halt the meeting was dismissed. I gave my reasons for that decision. I also dealt with the two other final orders sought by the applicant, giving reasons why those matters were also dismissed. This “Statement of Reasons” summarise those given verbally to the parties during the teleconference.

I shall deal in turn with each of the three orders sought.

Order 1 - Invalidation of meeting of 7 May 2001. Rushton advised that the notice of meeting document was forwarded to owners on 3 April. It was accompanied by an invitation to owners to submit motions, actually a required procedure in the case of annual general meetings but not extraordinary general meetings. The agenda and voting paper were later forwarded to owners on 20 April, some days short of the 21 days notice for meetings specified by section 43 of the Standard Module regulations. This insufficiency of notice is one of three grounds which Croft relies upon to invalidate the meeting.

The other grounds are, firstly, that the first five motions on the agenda were not decided upon and put forward by the committee, and, secondly, that no blank proxy form was sent out with the notice to owners as required.

In matters where plaintiffs seek to rely on procedural error or omission to invalidate resolutions or meetings as a whole, Courts are quick to point out that such defects are not necessarily fatal. The consistent view is that resolutions and meetings should be preserved unless the procedural defects constitute such a fundamental failure as would disadvantage one or more members in the exercise of their voting rights.

In this matter, owners were notified of the meeting date within time but received the agenda and voting paper some days outside of the required period of notice. On these facts I would in any case be inclined to allow the meeting to proceed, however that course is confirmed to me by the evidence of the secretary that all owners (apart from the applicant) have already submitted voting papers. No one has been disadvantaged in their voting and therefore I dismiss this ground.

In regard to the motions not being resolved by the committee for inclusion on the agenda, Motions 1, 2 and 4 were included and voted on, but failed, at the annual general meeting held on 3 March. These are therefore matters that are known to owners and are being put again for reconsideration. One concerns the sinking fund budget, which the body corporate must decide upon, and therefore it needs to consider a motion such as Motion 1. Motion 3 is a matter that can be dealt with by the committee and it has been decided that this motion will be withdrawn. In regard to Motion 5, Rushton admitted that although the committee had discussed the matter of termites in the north boundary fence at its meeting on 21 March, it had not resolved to put the motion to a general meeting. Accordingly, this motion has not been properly submitted therefore it will be a matter for the meeting to decide whether it wishes to proceed and deal with the matter. With both Croft and Rushton present at the meeting, and everyone else having voted by voting paper, all owners have the opportunity to consider the matter sooner rather than later and it may be of worth to retain the motion.

In regard to the third ground, based on the applicant’s advice from two owners they had not received blank proxy papers as required, the fact that all owners submitted voting papers again signifies that no owner was disadvantaged in their voting. Whether they were or were not missing is of no relevance.

In summary, for the above reasons it is my decision that there has been no disadvantage to owners in the manner of the calling of the meeting and I therefore dismiss this order sought by the applicant. The meeting therefore should proceed.

Order 2 – Professional Management of Body Corporate. The legislation provides for bodies corporate to engage a Body Corporate Manager to carry out its secretarial and treasury functions. I note that there is a motion (Motion 13) on the agenda for just such an engagement. Owners will therefore decide for themselves whether or not they want to be self-managed or employ a Body Corporate Manager.

Order 3 – Following Correct Procedures and Cease Harassment. In the teleconference I also pointed out that there is no sense or benefit to an order which merely restates the law as to the duties of a secretary and treasurer. The applicant had included in her grounds a number of complaints concerning specific matters but did not seek them as orders or give supporting evidence for them. The applicant should consider whether any of the matters are of such a serious nature as should be made subject of an application, but should first attempt to resolve the matters within the body corporate. This office will resist becoming a vehicle for owners acting out their ill-feeling towards each other by lodging tit-for-tat applications.

The second limb to this last order sought by Croft seeks to have Rushton and Merton stop “harassing myself and other absent owners.” Apart from some general statements submitted with the grounds, there is no evidence in support of this allegation. In any case, problems of a social nature such as harassment are better resolved between the parties themselves; a formal order has little meaning or effect in such matters. I would suggest that the applicant seek the assistance of mediators in the Dispute Resolution Centre, attached to the Attorney-General’s Department, or a private mediator if they so wish. Mediation is not meant to change disputants into friends, but often some incorrect opinions are dispelled by the truth of a situation, and the parties can determine how to separate their personal feelings from the communal decisions which must be made when residing together in a community titles scheme.

For the foregoing reasons, I have ordered that all three matters are dismissed.

In the circumstances it is not intended to invite further submissions regarding this matter or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted then she should appeal the interim order.

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