Stanton Crest 1 [2001] QBCCMCmr 55 (6 February 2001)

P J HanlyREFERENCE: 0643-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1100
Name of Scheme:	Stanton Crest 1
Address of Scheme:	15 Hale Street, TOWNSVILLE QLD 4810

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

Bernard David GREIG, the owner of Lot 34



I hereby order that the application by Bernard David GREIG, the owner of Lot 34, for an order that the positions of chairperson, secretary and treasurer are vacant, that Mr G Hunter stand aside as the paid secretary and treasurer after 30 November 2000, and that Mr Hunter comply with section 35 of the Body Corporate and Community Management (Standard Module) Regulation 1997, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0643-2000

“Stanton Crest 1” CTS 1100

The applicant, Bernard David Greig, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the positions of chairperson, secretary and treasurer are vacant, that Mr G Hunter stand aside as the paid secretary and treasurer after 30 November 2000, and that Mr Hunter comply with section 35 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

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 states that Mr Hunter was elected to the positions of chairperson, secretary and treasurer at the last Annual General Meeting. The applicant contends that Mr Hunter should stand down from these positions now that he has sold his lot. The applicant also considers that Mr Hunter was elected as the paid secretary and treasurer only until 30 November 2000. The applicant further claims that Mr Hunter failed to carry out a “Flying Minute” dated 14 June 2000. The “Flying Minute” relates to the election of Mr Greig as chairperson after the sale of Lot 8. The applicant states that the committee needs direction in respect of these issues.

A copy of the application was forwarded to the secretary for distribution to all members of the committee. In a response signed by six committee members it is stated that Mr Corcoran, the owner of Lot 24 nominated Mr Hunter for election to the positions of chairperson, secretary and treasurer, and on this basis Mr Hunter was entitled to remain in the elected positions after the sale of his lot. This submission also states that the “Flying Minute” was deemed invalid on the basis that Mr Greig was not a committee member at the relevant time and there was no vacancy to fill at the time.

It is not contested that Mr Hunter has sold his lot in the scheme. At the time of the sale of his property, Mr Hunter was the elected chairperson, secretary and treasurer of the body corporate. Section 25(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") prescribes the circumstances in which a committee member’s position becomes vacant. Specifically, section 25(2)(b) provides that a committee member’s position becomes vacant if the member “becomes ineligible to hold the position”. Section 10 of the Standard Module specifies the criteria for eligibility for committee membership. Section 10(1)(b) provides that a person is eligible to be a member of the committee if the person is an individual and is “nominated for membership of the committee by a member of the body corporate”.
It is clear that a current member of the body corporate nominated Mr Hunter for the contested committee positions. Even though Mr Hunter subsequently sold his lot, he was still eligible for committee membership on the basis of the nomination from Mr Corcoran. Therefore, a vacancy did not exist in the positions of chairperson, secretary and treasurer after Mr Hunter sold his lot.

The applicant has also stated that Mr Hunter should stand aside as the paid secretary and treasurer from 30 November 2000 as the body corporate had only resolved to pay him for secretarial and accounting services up to that date. As the elected secretary and treasurer, Mr Hunter’s term of office as a member of the committee continues until another person is chosen for the position. In the ordinary course of events, the choosing of committee members happens at each annual general meeting of the body corporate (unless for example, the member’s position becomes vacant in accordance with section 25 of the standard Module). It is not necessary that Mr Hunter vacates these positions simply because the period for which he was to be paid to provide services to the body corporate has passed.

However, while the body corporate may resolve to pay remuneration, allowances or expenses to a member of the committee, the body corporate has to be aware that a decision to pay for secretarial services may be caught by section 15 of the Act, which defines the term “body corporate manager”. This section defines a body corporate manager to be a person “engaged by the body corporate (other than as an employee of the body corporate) to supply, including through the exercise of delegated power, administrative services to the body corporate”. The engagement of a person, which is caught by this section of the Act, must be in accordance with the relevant provisions of the Act and the Standard Module.

The “Flying Minute” to which the applicant has referred is dated 6 June 2000 and relates to his election to the position of chairperson. As there was no vacancy in the position of chairperson at the date of this “Flying Minute”, there is no reason for any further consideration to be given to this matter. In addition, it would seem that this issue was considered at the committee meeting dated 22 June 2000 and did not receive the support of the committee. Further, the minutes of this committee meeting indicate that the applicant supported Mr Hunter continuing as secretary and treasurer. These committee decisions give an indication that the committee would not have supported the “Flying Minute” even if Mr Hunter had distributed it. The applicant should be aware that the secretary is not required to distribute a notice of motion under section 35 of the Standard Module after receiving a request from a particular committee member (this is assuming that Mr Greig was a committee member at this time, an issue about which I do not intend to make comment in this application). The applicant has also sought a decision on another “Flying Minute” dated 1 February 2000. I have not given any consideration to this document, as it did not form part of the original application for an order of an adjudicator.

For these reasons, the orders sought have been dismissed.1n