Admiralty Towers II [2001] QBCCMCmr 526 (3 October 2001)

C G YOUNGREFERENCE: 0167-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15344
Name of Scheme:	Admiralty Towers II
Address of Scheme:	501 Queen Street BRISBANE QLD 4000

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

Anthony Noel WATSON-BROWN, a co-owner of Lot 136,



C G YOUNGI hereby order that the applicant, Anthony Noel Watson-Brown, a co-owner of Lot 136, and the other party, comprising Michael Ryall, Chris Smith, Dean Trowse, David McVeagh, Huan Fraser and Lawrie Ward, being persons involved in the administration of the respondent Body Corporate for Admiralty Towers II community titles scheme 15344, having reached a mediated settlement on 26 September 2001 of the disputes subject of the application, and having all signed an agreement on that date setting out the terms of settlement including that a consent order be made in respect of the terms by an Adjudicator pursuant to section 199(3)(e) of the Body Corporate and Community Management Act 1997, must abide by those agreed terms which are set out below –

1. All agree the following procedures be implemented in Admiralty Tower II Body Corporate administration.

2. Documentation to be held at Brisbane Ernst Body Corporate Management Pty Ltd Office. The Brisbane Office will then become the Registered Office.

3. This documentation will be available at Brisbane within 4 weeks of today’s date. Accounting process to remain at the Gold Coast Office of Ernst Body Corporate Management Pty Ltd.

4. Future Annual General Meeting Minutes to reflect receiving, accepting, noting reason for rejecting of voting papers and Ballot papers.

5. Committee will review the policy on discount on levies for the AGM.

6. Register of Corporate Nominees will be maintained at the Registered Office.

7. There will be a review re. handling of Proxies and Corporate Nominee votes at the AGM.

8. Notes to Accounts to reflect payments to Body Corporate Manager, Building Services Manager and their respective associates.

9. Notes to Accounts to reflect any differences between Charter of Accounts and contract terminology.

10. The Sinking Fund Budget will be accompanied by an explanatory Note to reflect consistency with, or deviation from, the Sinking Fund Forecast.

11. Attached to the Minutes of the October Committee Meeting will be a copy of this Agreement, including the list of Ballot Papers received for the last AGM.

12. A specific advice would be sent to each relevant owner advising why their Ballot or Vote was not counted.

13. The application to DNR is to be withdrawn forthwith on approval of this agreement by the adjudicator.

14. We agree to refer this agreement to an adjudicator appointed under the Body Corporate and Community Management Act 1997, as a consent order pursuant to Section 199 of the Act.

I further order that the parties must observe and carry out the terms of the agreement from the date
of this order.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0167-2001

“Admiralty Towers II” CTS 15344

This is a consent order made under the provisions of section 199(3)(e) of the Body Corporate and Community Management Act 1997 (“the Act”) and is also the final order to an application by Anthony Watson-Brown of Lot 136, who sought a number of orders against the respondent Body Corporate for Admiralty Towers II under the headings of Accounts, Administration Fund Budget and Levies, Sinking Fund Budget and Levies, Deed of Variation, and the Election of the Chairperson, Secretary, Treasurer and Ordinary Members of the Committee.

An interim order was also applied for by the applicant, to prevent any dealing with the ownership of the rights under the Management and Letting Agreement, and on 3 April 2001 the following Interim Order 167-2001 was issued –

“I hereby order that the application by Anthony Noel Watson-Brown, the co-owner of lot 136, for an interim order that prevents any dealing with the ownership of the rights under the Management and Letting Agreement the subject of the disputed resolution, is dismissed.”

A copy of the application was provided to the body corporate committee members, representing the respondent body corporate, and the Building Letting Agent and Caretaker, Allcare Investments Pty Ltd and John Sklavos as an affected party, inviting submissions to the application (see section 194 of the Act).

Subsequently, acting under the case management provisions of section 198(2) of the Act, the Commissioner for Body Corporate and Community Management (“the Commissioner”) determined that the most appropriate method for resolving the disputes subject of the application, was to refer the application to the Dispute Resolution Centre, Department of Justice, for mediation. This case management decision was advised to the parties on 6 August 2001.

The Dispute Resolution Centre advised the Commissioner by letter dated 27 September 2001, that the disputes had been mediated on 26 September 2001 between Dr Watson-Brown and several persons involved in the administration of the respondent body corporate, being Michael Ryall, Chris Smith, Dean Trowse, David McVeagh, Huan Fraser and Larrie Ward. While the body corporate has not passed any resolution ratifying the terms of the agreement, the matters agreed to are of an administrative nature and able to be individually or collectively carried out by the named persons in the capacity of their respective relationships with the body corporate. The agreement is therefore between the applicant and the named persons, however the applicant accepts the terms of agreement as satisfying those matters raised in the application and has withdrawn the application in closure of all matters raised.

The terms of agreement are set out in my order.

Section 199(3)(e) of the Act states –

“Supplementary case management recommendation.

199. (1) This section applies to an application for an order of an adjudicator if—

(a) the application has been the subject of dispute resolution center mediation or specialist mediation; and

(b) the applicant wishes to proceed with the application.

(2) The commissioner must decide on a supplementary case management recommendation for the application.

(3) The commissioner must choose 1 of the following supplementary case management recommendations—

(a) if the application has been the subject of dispute resolution center mediation—that the application be the subject of—

(i) further dispute resolution centre mediation; or

(ii) specialist mediation;

(b) if the application has been the subject of specialist mediation—that the application be the subject of—

(i) further specialist mediation; or

(ii) dispute resolution centre mediation;

(c) that the application be the subject of department adjudication;

(d) that the application be the subject of specialist adjudication;

(e) that the application be the subject of department or specialist adjudication, limited to making an order with the consent of all parties to the application, whether or not for formalising the substance of an agreement reached at mediation.”

(Adjudicator’s underlining)

Accordingly, as provided for in paragraph (e) above, my order is limited to the making of a consent order formalising the agreement reached, there being, in my opinion, no terms that would prevent me from including them in an order. I have included a further, auxiliary order, however it merely sets the date for the commencement of the order and therefore the duties of the parties under the terms of the agreement (see section 230(1) of the Act).

I point out to the parties that under the provisions of section 237(1)(b) of the Act, no appeal can be made against this order. I also point out that this order comes within the general provision for the enforcement of orders as set out in Part 2, Chapter 6 “Dispute Resolution” provisions of the Act.