Parkrise [2001] QBCCMCmr 34 (25 January 2001)

P J HANLYREFERENCE: 0551-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14028
Name of Scheme:	Parkrise
Address of Scheme:	C/- The Secretary Mr G Taylor PO Box 820 SURFERS PARADISE QLD 4217

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

Eric John Culpitt, the co-owner of lot 14



I hereby order that the application:

• That an order be given by an adjudicator declaring motions 10, 18, 19, 20 and 21 which appear on the voting paper included with the Notice of Annual General Meeting and the ballot paper be declared invalid for serious irregularity

• To order the secretary to convene a meeting of the committee to properly determine motions to be submitted to the owners for consideration at an Annual General Meeting

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0551-2000

“Parkrise” CTS 14028

The applicant Eric John Culpitt, the co-owner of lot 14, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That an order be given by an adjudicator declaring motions 10, 18, 19, 20 and 21 which appear on the voting paper included with the Notice of Annual General Meeting and the ballot paper be declared invalid for serious irregularity.

To order the secretary to convene a meeting of the committee to properly determine motions to be submitted to the owners for consideration at an Annual General Meeting.

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 expresses concern that the present committee is not performing its duties in accordance with the requirements of the Act and the Standard Module, particularly in relation to the annual general meeting held on 2 October 2000. The applicant then provides details of his concerns in respect of each of the motions which he seeks to have declared invalid for serious irregularity. I do not propose to set that material out in this document, as it has been circulated to all owners.

Submissions were sought from all owners and from the committee. Various submissions were received, and the applicant replied to those submissions.

On 24 January 2001, I telephoned the body corporate manager to request a copy of the agreement which the body corporate had entered into with Taylor Westerveld Pty Ltd. The body corporate manager also informed me that an extraordinary general meeting had been held on 22 January 2001. I therefore also requested a copy of the minutes of that meeting.

I note from the draft minutes of the meeting held on 22 January 2001 that the body corporate’s decision on one of the motions in respect of which the applicant seeks an order, namely motion 19 considered at the annual general meeting held on 2 October 2000, has effectively been overtaken by the further decision of the body corporate at the meeting held on 22 January 2001. Motion 19 related to the recovery of funds totalling $5000.00 by the body corporate from Eric John Culpitt and/or Ricmar (Qld) Pty Ltd.
At the meeting held on 22 January 2001, the body corporate resolved to take no more action against E J Culpitt or Ricmar (Qld) Pty Ltd in the matter of the alleged unauthorised expenditure to Steve Kellermeier Architect. The alleged unauthorised expenditure amounted to $5000.00. In the circumstances, I do not propose to give any further consideration to the application insofar as it relates to motion 19 considered at the annual general meeting held on 2 October 2000.

I shall deal with the remainder of the application in order.

Motion 10

The applicant notes that at a committee meeting held on 17 July 2000 the committee resolved that a motion be considered by the body corporate at the annual general meeting to appoint Body Corporate Services Pty Ltd as body corporate manager. The minutes of that committee meeting were circulated to owners. However, by a flying minute dated 18 August 2000, the committee rescinded the earlier motion in relation to Body Corporate Services, and resolved instead to submit a motion to the annual general meeting for the appointment of Gold Coast Body Corporate Specialists. The applicant’s complaint in this regard is that the flying minute was not circulated to owners, and therefore that the motion should be declared void for irregularity. I do not accept this argument.

It is correct to say that the flying minute should have been circulated to owners, so that they were made aware of the committee’s decision. In future, the committee must ensure that this is done. However, the failure to circulate a copy of the flying minute did not render the committee’s decision void. Furthermore, the motion was subsequently voted upon at the annual general meeting, and was overwhelmingly supported by those owners who were eligible to vote. In addition, the minutes do not reveal that any complaint was made at the annual general meeting of the fact that the flying minute was not circulated to owners (although I am not suggesting that the absence of complaint should be taken by the committee as an acceptance of their failure to circulate the flying minute).

I therefore do not propose to order that motion 10 be declared void for irregularity.

Motion 18

This motion related to the sign erected on the southern wall above the doorway of lot 2. The applicant is concerned that the owner of lot 2 has been singled out, and is being treated unfairly by the body corporate. It appears from the material provided to me that subsequent events have effectively overtaken the applicant’s concerns in respect of this motion. Firstly, at the annual general meeting held on 2 October 2000, the body corporate resolved to approve the sign, subject to the terms and conditions and annual fee to be determined by the committee. At a meeting held on 9 October 2000, the committee resolved not to impose a fee on the owner of lot 2, provided that he maintains the sign in good condition. I can see no evidence of discrimination against the owner of lot 2.

I therefore do not propose to order that motion 18 be declared void for irregularity.

Motion 20

The applicant complains that there has been no agreement under section 78 of the Standard Module, and no agreement was forwarded with the notice of meeting. The notice of meeting did include the terms of the engagement (both in the letter dated 20 May 2000 from Taylor Westerveld and in the conditions of agreement attached to the letter) and the engagement was approved by ordinary resolution of the body corporate (section 87 of the Standard Module). On 16 November 2000, the body corporate manager forwarded a letter to Taylor Westerveld confirming the basis of the engagement, and enclosing the conditions of agreement to be signed by Taylor Westerveld. The conditions of agreement were signed by Taylor Westerveld, and then signed by two committee members under the seal of the body corporate. Although this documentation is not elegantly drafted, I consider that it satisfies the requirements of section 78.

I therefore do not propose to order that motion 20 be declared void for irregularity.

Motion 21

The community management statement was lodged in the Titles Office on 10 July 2000. At the annual general meeting held on 2 October 2000 the body corporate resolved to ratify the recording of the community management statement. At the extraordinary general meeting held on 22 January 2001 the body corporate resolved to approve the community management statement and the by-laws which had been forwarded to owners with the notice for the annual general meeting and to ratify the lodgement of the community management statement. In both instances the actions of the body corporate have not been in accordance with the requirements of the Act. Section 50 of the Act provides as follows:

ú

Subsequent community management statement

50.(1) The existing statement for a community titles scheme cannot be

amended, but a new community management statement for the scheme

may be recorded in the place of the existing statement.

(2) The new community management statement may be recorded only if

the body corporate—

(a) consents to the recording of the new statement; and

(b) endorses its consent on the new statement.

(3) For giving its consent under subsection (2)(a), the body corporate

must have before it the new community management statement in the form

in which it is to be recorded.

Example—

The body corporate at a general meeting recommends that the committee for the

body corporate consider certain changes to the by-laws contained in the existing

statement for the scheme. Various drafts of new by-laws are considered in successive

meetings of the committee, and then a new community management statement is

prepared incorporating new by-laws. The body corporate consents to the recording of

the new statement, and it is this statement, as consented to by the body corporate,

that the registrar is requested to record.

Notwithstanding that the community management statement was lodged prior to the body corporate giving its consent, I note that on both occasions that the issue has been considered by it the body corporate has voted overwhelmingly in favour of each motion. On the last occasion, the applicant himself voted in favour of the motion. In light of the body corporate having considered the matter twice already, I do not propose to order that motion 21 be declared void for irregularity. In making this decision I have had regard to the fact that no owner has objected to any of the by-laws, or to the regulation module to be adopted, and that the only concern was a failure to observe the correct procedure for the giving of consent. I am therefore satisfied that no member of the body corporate has been disadvantaged, and I can see no benefit in putting the body corporate to further expense on a technicality. The committee should, however, ensure that if the body corporate has occasion to lodge any further community management statements, that proper procedure is followed.

Ballot paper

The applicant submits “that owners have the right to know who of the candidates seeking election as ordinary members of the committee is a lot owner or non-owner”.

Section 17(5) of the Standard Module only requires that a candidate be identified as a lot owner or otherwise if the ballot is for secretary or treasurer. In this instance, there was only one nomination for secretary/treasurer, and that person was accordingly elected unopposed. The remaining names on the ballot paper did not have to be identified as to whether they were owners or non-owners. I therefore do not propose to order that the ballot paper was void for serious irregularity.