Brookchester Manor [2001] QBCCMCmr 389 (19 July 2001)

Last Updated: 11 December 2009

P J HANLYREFERENCE: 0178-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9048
Name of Scheme:	Brookchester Manor
Address of Scheme:	17-25 Linning Street MT WARREN PARK QLD 4207

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

Desmond Baker, the owner of lot 1

I hereby order that the application for an order that the committee meeting held on 25 February 2001 was void, is dismissed. The above order was appealed to the District Court at Beenleigh. The appeal no is: D92/01.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0178-2001

“Brookchester Manor” CTS 9048

The applicant, Desmond Baker, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I seek to have this meeting of the body corporate of Brookchester Manor declared void as it was in contravention of the rules and negated actions by the body corporate committee that have the approval of the majority of body corporate members. I also request that all decisions from this meeting to be set aside.

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 –

1. a claimed or anticipated contravention of the Act or the community management statement; or
2. the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

100. 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 states that the body corporate had determined at a number of previous annual general meetings that the number of committee members would be limited to 4. Accordingly, the applicant contends that the election of 3 new committee members at the committee meeting held on 25 February 2001 was invalid. The applicant further states that procedures for nomination of committee members can only be carried out at a properly constituted annual general meeting, which has been called in the prescribed manner. The applicant further states that the annual general meeting and the nominations must be called by the secretary as determined by the rules.

The body corporate committee was invited to respond to the application. A submission signed by 4 committee members was received on 16 May 2001. The committee opposed the application.

The minutes of the committee meeting held on 25 February 2001 reveal that there were three vacancies on the committee at that time. Three persons had indicated their willingness to serve on the committee and they were duly appointed to fill the vacancies. There is no evidence in the body corporate records that the body corporate had ever resolved to limit committee membership to 4. In any event, the Accommodation Module, by which this scheme is regulated, provides that the committee must consist of at least 3, but not more than 7, persons (section 10(3)). Accordingly, even if such a resolution had been made, it would be void on the basis that it was contrary to the regulations. Furthermore, section 23(3) of the Accommodation Module provides that the committee must appoint a person who is eligible to be a member of the committee to fill a vacancy in the position of an executive or ordinary member of the committee, or call a general meeting of the body corporate to fill the vacancy. In this case, the committee elected to fill the vacancies.

I also note that at the annual general meeting held on 7 September 2000, the body corporate manager was appointed for a term of one year, and the body corporate resolved to delegate its powers authorities duties and functions to the body corporate manager under section 106 of the Act. I further note that four committee members were elected, including the applicant as secretary and treasurer.

The applicant has not challenged the committee’s assertion that he lives in America. It is obviously completely untenable for the elected secretary to live overseas. I am satisfied that the body corporate manager has exercised his delegated powers as secretary to call meetings as and when they have been required. I am not satisfied that there was any irregularity in the calling of the committee meeting held on 25 February 2001. I am further not satisfied that there was any irregularity in the election at that meeting of the three persons to fill the vacancies on the committee.

I have therefore dismissed the application.

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