Villa Edgewater [2001] QBCCMCmr 254 (15 May 2001)

P J HANLYREFERENCE: 0151-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23092
Name of Scheme:	Villa Edgewater
Address of Scheme:	6 Harbourview Ct RABY BAY QLD 4163

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

William Frank Batt, the co-owner of lot 13



I hereby order that the application for an order to dismiss the body corporate committee and rule against re-nomination of the current members is dismissed.

I further order that the application for an order to direct Villa Edgewater’s professional manager to call for fresh nominations for a new committee and to manage the election process is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0151-2001

“Villa Edgewater” CTS 23092

The applicant, William Frank Batt, the co-owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Dismiss the body corporate committee and rule against re-nomination of the current members.

Direct Villa Edgewater’s professional manager to call for fresh nominations for a new committee and to manage the election process.

Section 223(1) of the Act 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)).

In the supporting grounds, the applicant provides considerable information about landscaping issues at the scheme, and details certain recent developments in relation to the removal of six Phoenix canariensis palms. On the basis that the applicant believes that the committee has acted incorrectly in respect of the removal of the palms, he seeks an order that the committee be dismissed, and a further order that they be prevented from re-nominating for committee membership.

The committee was invited to respond to the application. Submissions were received from the chairperson and several other committee members.

The chairperson acknowledged that, after the “informal” committee meeting held on 6 February 2001, it was intended that the minutes of that meeting be circulated to all owners thereby allowing them the opportunity to lodge objections to the decision to remove the palm trees within the two week period before the work was scheduled to be undertaken. However, not only were the minutes not circulated, but also the tree removalist decided to commence work earlier than originally planned. The chairperson accepted responsibility for the oversight, and stated that he had sent a letter of apology to all owners.

The other committee members basically outlined the background to the dispute.

There is no doubt that the minutes of the committee meeting held on 6 February 2001 should have been circulated to all owners, and that the work on the removal of the palm trees should not have been undertaken until after the expiration of the objection period. However, the orders sought by the applicant do not relate to these matters, although he alludes to some responsibility of the committee for replacement of the palms in his reply to the submissions. The actual orders sought relate to the dismissal of the committee and a prohibition on their re-nomination for committee membership.

I note that the annual general meeting was held on 26 April 2001, at which time the only nominees for committee membership were elected to the committee. There is no evidence before me that there was any defect in the nominations for committee membership. Even though some (if not all) of those committee members were also members of the previous committee, no order has been sought in relation to the issue which appears to be at the heart of the applicant’s complaint, namely the removal of the palm trees. There is no evidence that any other owner in the scheme was prevented from nominating for committee membership. I am satisfied that the process outlined in the Act and the regulations has been followed, and that the committee was validly elected at the annual general meeting. I do not propose to make the orders sought by the applicant. Apart from anything else, he has not sought the endorsement of the body corporate for his complaint by proposing a motion for the removal of the committee, so it is arguable that there is not even a dispute as defined in the Act.

The application is dismissed.



2n