Peppercorn Place [2001] QBCCMCmr 35 (29 January 2001)

Last Updated: 19 November 2007

RA MeekREFERENCE: 0033-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20700
Name of Scheme:	Peppercorn Place
Address of Scheme:	20 Hellawell Road SUNNYBANK QLD 4109

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Peppercorn Place

RA MeekI hereby order that the AGM of the body corporate for Peppercorn Place proposed to be held on Tuesday 30^th January 2001 is invalid, and shall not proceed.

I further order that within one (1) week of the date of this order the body corporate manager, Logan Body Corporate Services (the manager), shall deliver up to the body corporate chairperson all books and records and other assets of the body corporate held in the possession of the manager so that the body corporate may thereafter convene a further general meeting.

I further order that the chairperson of the body corporate of Peppercorn Place shall be authorised in place of the secretary, Mr Michael Golden, to call the next meeting of the body corporate of Peppercorn Place, and that the secretary shall have no involvement in the calling of that meeting.


The above order was appealed to the District Court, Brisbane on 10 January 2001. On 25 September 2001, there was an agreement to dismiss the appeal. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0033-2001

"Peppercorn Place" CMS 20700

The applicant, Body Corporate for Peppercorn Place, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

If an interim order (a) is not granted, then motions 3, 4, 6 and 7 be declared void for irregularity.

The Applicant body corporate has also sought the following interim order of an adjudicator, quote –

a)	That the AGM to be held on Tuesday 30 January 2001 be cancelled as it is void for irregularity in that it has been called without the authority or knowledge of the committee.
b)	That MT&HR Golden t/a Logan Body Corporate Service deliver up the books and records of the body corporate to the chairperson, Mr Ben Reid on 1 February 2001.

Section 225(1) 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)).

The applicant body corporate has alleged a number of serious irregularities in the convening of the AGM for Tuesday 30 January 2001, including –

• That the secretary / treasurer and not the committee has prepared the notice of meeting;

• The notice was prepared without consultation with, or notice to, the committee;

• Certain motions required by the legislation to be included on the agenda have not been so included;

• Requirements of the legislation regarding auditing have not been complied with;

• Certain motions included on the agenda have been submitted by the Treasurer / Secretary and not the committee;

• That proposed motion 6 does not comply with the requirements of sections 87 and 104 of the standard module.

The body corporate concludes with –

Due to the fact that Mr Golden had no authority from the committee to send out the notice of AGM and further due to the fact that there are a large number of anomalies in the notice of meeting, we request that the adjudicator grant the orders sought.

It is further clear from the material that the body corporate has recently given notice of termination of Logan Body Corporate Services (LBCS) as body corporate manager. In a letter dated 2 January 2001, Herd & Janes, Lawyers purporting to be instructed by the committee to act on behalf of the body corporate, gave to LBCS notice of termination of the body corporate management agreement, and further, revoked "any powers (the body corporate) may have delegated to you under section 106(2)" .

Mike Golden, on behalf of LBCS, has made a submission in response to the application. LBCS opposes the application. The submission states that –

The committee failed to call – as in past years – the 12^th AGM and I did, pursuant to the powers and duties of the committee delegated to me since 1994.

This statement conveniently ignores two important facts. Mr Golden alleges that he called the AGM "pursuant to the powers and duties of the committee delegated" to him since 1994. The notice of AGM is dated 8 January 2001. On 2 January 2001, the committee had informed Mr Golden that –

Under section 106(3) ... the body corporate revokes any powers it may have delegated to you under section 106(2).

It is clear that under section 106(3), a committee has power to revoke a delegation of powers to a body corporate manager.

Consequently, Mr Golden could have only convened the AGM in his capacity as secretary of the body corporate; not as body corporate manager. I acknowledge that it is part of the role of the secretary of the committee, as Mr Golden is, to call both committee and general meetings. Mr Golden states that the committee were due to meet on 19 December 2000 to consider the AGM notice and agenda. It seems that when this meeting did not proceed, Mr Golden sought to act unilaterally in respect of the AGM notice and agenda. I suggest that there is no power for a secretary to act unilaterally regarding such matters. A secretary has authority to act in a manner authorised by the committee. This includes in the convening of a general meeting of the body corporate.

In his submission, Mr Golden goes on to allege that "insolvency and instability" of the body corporate. These allegations are irrelevant to the matters at hand. Mr Golden concludes his submission with –

By this time next week the owners should have decided what they want – if you let them – ending the present insolvency and instability. However based on you siding last year with a dodgy incompetent committee at Springwood, I have little confidence in you impartiality.

I agree that this application contains similar allegations against Mr Golden and LBCS as several in the past have; Mr Golden seeks to rely on bluff, or simple outright refusal, to retain control of bodies corporate when the writing is on the wall. I am not going to wait for a supposed vote of confidence in Mr Golden via the meeting. This is a usual tactic of Mr Golden; to hold on and claim support of owners against a supposedly wayward or incompetent committee.

Mr Golden has not responded to any of the specific allegations of irregularities as contained in the agenda and notice of meeting. Essentially the allegations of irregularity are correct. I can only assume that Mr Golden does not have a response which would sufficiently explain such irregularities.

If Mr Golden considers that this determination is impartial, then he should appeal the order. However I intend to order in terms as sought by the applicants.






I intend to order that the AGM proposed to be held on Tuesday 30^th January 2001 is invalid, and shall not proceed. I note from the letter of 2 January 2001 that the respondent was required to deliver up all books and records to the chairperson, Mr Ben Reid on or before 1 February 2001. I further intend to order that the respondent deliver up to the body corporate chairperson all books and records and other assets of the body corporate within one (1) week of the date of this order so that the body corporate may thereafter convene a further general meeting.

I note that the Mr Golden, the principal of LBCS is the elected secretary of the body corporate. Given the current dispute which exists between the body corporate and the manager, it is not conceivable in my view that Mr Golden could undertake the role of secretary to convene the next general meeting without there being a conflict of interest with he role as the manager. For this reason, I consider that it is appropriate that I authorise the chairperson of this body corporate to call the next meeting of the body corporate in place of the secretary.

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 it should appeal the interim order.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n