Sani Villa [2001] QBCCMCmr 249 (14 May 2001)

P J HANLYREFERENCE: 0022-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19428
Name of Scheme:	Sani Villa
Address of Scheme:	76 Condamine Street RUNCORN QLD 4113

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

Parveen Kumar Gupta, the co-owner of lot 9, Bruce Kenneth Vidgen, the co-owner of lot 18 and Brian Charles Tampaline, the co-owner of lot 26

I hereby order that –

(1)	Margaret McGrath of S.E. Qld. Corporate Management, 13 Laura Court, Beaudesert Qld 4285 is appointed as administrator to call, hold and chair an annual general meeting (“the meeting”) of “Sani Villa” within three (3) months of the date of this order for the purpose of -
•	the consideration of motions included on the agenda of the meeting; and
•	the election of committee members.

(2)	The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that within seven (7) days of the date of this order the administrator must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme (“lot owners”).

I further order that –

(1)	For the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers -
•	to further delegate any of those powers to another person; or
•	to incur any expenditure apart from that necessary for the calling and holding of the meeting, except in regard to expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

(2)	The meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 40 and 43 of the Accommodation Module and all other provisions relating to meetings under Part 4 of the Accommodation Module.

(3)	The administrator must not give the notice of meeting to owners earlier than twenty-eight (28) days from the date of this order.

I further order that lot owners shall have the right to submit to the administrator, motions for inclusion on the agenda for the meeting; and

a) if the lot owner is an individual - to nominate the lot owner or another individual for election as a member of the committee; and

b) if the lot owner is not an individual - to nominate an individual for election as a member of the committee;

Provided that

a) the motions and / or nominations are received by the administrator within 28 days from the date of this order; and

b) the motions and / or nominations are otherwise in accordance with the requirements of the accommodation module;

then the administrator shall include the motions on the agenda of the meeting, or nominations on the ballot for election as members of the committee.

I further order that the administrator shall also include on the agenda of the meeting all previous motions submitted by owners which have not yet been decided by the body corporate in general meeting.

I further order that the motions on the agenda of the annual general meeting and the ballots for all positions on the committee shall be decided by secret ballot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0022-2001

“Sani Villa” CTS 19428

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

(a)	That either the chairman, body corporate manager or an independent person appointed by the adjudicator (at reasonable cost to the body corporate) be appointed to call a general meeting of the body corporate as soon as possible to be held at the Calamvale Hotel at 6.00pm and to receive secret voting and ballot papers;
(b)	That the agenda include the motions proposed by the committee and listed in the draft notice of annual general meeting attached hereto as well as the motions submitted by others and listed in the said notice;
(c)	That the nominations submitted to the secretary in accordance with the provisions of the Body Corporate and Community Act and Regulations 1997 be included in the ballot papers;
(d)	That all voting be by secret ballot as resolved by the committee.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)).

Specifically, without limiting the power of an adjudicator to make an order under section 223(1), an adjudicator may order the body corporate to call a general meeting of its members to deal with stated business or to change the date of an annual general meeting (section 223(3)(p)). Alternatively, the adjudicator may order the appointment of an administrator, and authorise the administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the community management statement (section 223(3)(v)).

The administrator has the powers given to the administrator under the order (section 248(2)). Section 248(3) provides that the order may –

a)	withdraw all or particular stated powers from the body corporate (and any delegate of the body corporate) or from stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and
b)	require officers or delegates of the body corporate to take stated action to help perform the work the administrator is required to perform; and
c)	fix the administrator’s remuneration.

An order appointing an administrator may be the only order the adjudicator makes for an application (section 223(4)(a)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

Section 58 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module) provides that an annual general meeting (other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. A general meeting (which includes an annual general meeting) may be called by a person authorised or required to call a general meeting by an order of an adjudicator acting under the dispute resolution provisions (see section 38 of the Accommodation Module). Moreover, the agenda for an annual general meeting must include the items set out in sections 43(2) and 43(3) of the Accommodation Module.

Let me say at the outset that I do not accept the arguments of certain of the owners and of Mr David Gupta that this application does not fall within the jurisdiction of the Act. The applicants are co-owners of lots within the scheme. The respondent to the application is the body corporate. Section 182 allows for such parties to a dispute. The applicants are entitled to seek orders that the body corporate comply with the requirements of the Act and the regulations in relation to the holding of an annual general meeting.

In the supporting grounds, the applicants state that the elected secretary, Mr David Gupta, has disrupted the efficient running of the body corporate since becoming involved in the administration of the body corporate. The applicants provide considerable background material to the dispute, and note that the annual general meeting which was due by 31 January 2001, has still not been held.

All owners and the committee of the body corporate were invited to respond to the application. Responses were received from several owners and from Mr David Gupta.

I do not propose to set out the detail of the submissions. Suffice to say there appears to be considerable unrest in this body corporate, caused in no small part by the fact that the annual general meeting has not been held within the time prescribed by section 58 of the Accommodation Module. I am of the view that such a meeting must be held without further delay to place the administration of the body corporate back on a proper footing. I am also satisfied that it is necessary to authorise a person to call and hold the meeting, as it is quite apparent from the material before me that the elected secretary has failed to discharge his duties, and that the level of disputation and ill-feeling present within the body corporate at this time would make it impossible for him to attempt to resume his role.

In addition to the usual orders in relation to the appointment of an administrator, I have also ordered that fresh nominations for the committee are to be sought. In making this order, I wish to make it perfectly clear that I do not consider the nominations submitted before the end of the financial year to be defective, as alleged by Mr David Gupta. I have examined the forms provided to me and I do not accept that there are “bogus signatures” on any of the forms, or that there are other irregularities. A careful inspection of Mr Vidgen’s nomination form suggests to me that Mr Vidgen has signed at the bottom of the form as the nominator, and also against each of the nominated names in the right hand column. It then appears that the nominees (other than Mr Vidgen, who also nominated himself, as he is entitled to do) have also signed in the right hand column, such that there are two signatures in three of the four boxes. Although it would have been preferable for Mr Vidgen to have crossed out his signature where it appears in the right hand column against the other nominees, this does not invalidate the form, or render the signatures “bogus”. However, the reason for my order to call fresh nominations is that over 6 months have elapsed since the closing date for the receipt of nominations, and in that period of time owners who have not nominated may have decided that they would like to be involved in the day to day administration of the body corporate, and owners who have nominated themselves, or who have been nominated by others, may not wish to be involved. In addition, if there are any new owners, they should also be afforded the opportunity to nominate.

I propose to make a similar order in Application 0027-2001.Margaret McGrathS.E. Qld. Corporate Management, 13 Laura Court, Beaudesert Qld 42853212121y2yn