Hi-Ho Holiday Motel [2001] QBCCMCmr 335 (20 June 2001)

RA MeekREFERENCE: 0168-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14117
Name of Scheme:	Hi - Ho Holiday Motel
Address of Scheme:	2 Queensland Avenue BroadBeach QLD 4218

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

Colin Lamont, the co-owner of lot 25



RA MeekI hereby order that the application by Colin Lamont, the co-owner of lot 25, for an order to call an EGM immediately to seek ratification of the appointment of a body corporate manager for 2001-2002 to comply with the overwhelming decision of the AGM on November 29^th 2000 and to include on the agenda such other motions as have been presented to the secretary for such an EGM, is dismissed.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0168-2001

“Hi - Ho Holiday Motel ” CTS 14117

The applicant Colin Lamont, the co-owner of lot 25, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I seek an order that the committee of Hi Ho Apartments ... to call an EGM immediately to seek ratification of the appointment of a body corporate manager for 2001-2002 to comply with the overwhelming decision of the AGM on November 29^th 2000 and to include on the agenda such other motions as have been presented to the secretary for such an EGM and that in respect of this matter an independent returning officer be appointed by the commission to ensure that neither Body Corporate Services nor the chairman interfere in any way with the proper rules and procedures of voting by owners.

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 supporting grounds. These are known to the body corporate via the submission process. The essence of the applicant’s complaint is that the body corporate committee failed to properly implement the resolution carried at the AGM on 29 November 2000, which provided that –

That the body corporate postpone appointment of paid secretarial services for 2000-2001 until the new committee has obtained at least 3 quotes and that the body corporate then authorises the committee to make that appointment after consideration of all relevant matters.

The resolution was carried by 19 votes in favour, with no votes against.

The applicant’s principal contention is that the committee should have advertised for quotes. The applicant makes various allegations that the actions of the chairperson and the then appointed secretary, Body Corporate Services (BCS), were intended to frustrate the process and to ensure that BCS were reappointed.

The applicant’s animosity towards, and disregard for BCS in their role as manager of this body corporate is clear from material he has provided to this office. As well, the applicant clearly acknowledges in his application that he seeks the appointment of Active Body Corporate (ABC) as manager, “a highly reputable and recommended company”. In the circumstances, one wonders at the objectivity of the applicant so far as this matter is concerned.

The committee has responded in a submission, seeking that the application be dismissed.

The committee states that it has “in all ways complied with the motion passed at the AGM 1 December 2000 in that they obtained 3 quotes which were summarized by the chairperson ...”

The committee sought quotations from four different entities for the appointment of a body corporate manager. The committee states –

There is no necessity or requirement to advertise and we would refer you to an explanatory note in the agenda of the EGM 26 April 2001. The motion of the AGM 1 December 2000 authorises the committee to make a decision, which they have done and have now included in the agenda of the EGM called for 26 April 2001 ... a motion to appoint Body Corporate Services Pty Ltd, their preferred contractor ... also a private motion from Mr Lamont to appoint Active Body Corporate Management has been included.

The committee makes the statement that the applicant’s comments “make a number of assumptions which are both incorrect and insulting to the chairperson, secretary, elected committee and Body Corporate Services”. I certainly consider that much of the applicant’s grounds, and reply to the committee’s submission, is based on assumptions and opinions.

I intend to dismiss this application. I consider that the committee has complied with the requirements of the resolution carried at the AGM held on 1 December 2000. There is no requirement for a body corporate to advertise for the provision of body corporate management or secretarial services. To do so I would consider to be a waste of body corporate funds. The nature of such services is generic. A Body corporate manager needs very little information (essentially the number of lots in a scheme) before being able to provide a quotation for such services. In the circumstances, to advertise for the provision of such services is totally unnecessary. Further, I am satisfied that the motion submitted to the EGM held on 26 April 2001 was valid. If anything, I consider that it is the applicant’s motion submitted to that meeting which is invalid. To begin with, that motion does not include a copy of the proposed management agreement of ABC.

I will make one comment. I note the statement that “3 quotes which were summarized by the chairperson, not an unusual practice as it saves the individual committee members searching and making necessary comparisons based on the adopted criteria”. I do not agree that this is “not an unusual practice”. The resolution implies that it was the committee which was to determine the successful tenderer. What appears to have occurred however is that the chairperson collated the quotes and then made a recommendation to the committee, which I accept the committee then approved, notwithstanding the obvious objection of the applicant. I consider that committee members should have personally considered each of the quotes. This is the way individuals normally make an objective assessment. In my view, it is part of their role and responsibility as committee members, and in fact would have taken very little time.

However, whilst this point acknowledges an argument raised by the applicant, I nevertheless do not consider that it warrants the invalidation of the appointment of BCS, or the process by which it was recommended. I consider that there is clear evidence to show that the view of the applicant is as positional as any he alleges on the part of the chairperson regarding this matter.

In any event, owners in general meeting were at liberty to reject the motion proposing the appointment of BCS.

It follows that I decline to order the appointment of “an independent returning officer ... appointed by the commission”. Section 52 provides that it is the body corporate who decides whether to appoint a returning officer”. This office does not act as, or appoint persons to the position of, returning officer.





n