Surfers Plaza Resort [2001] QBCCMCmr 609 (30 November 2001)

RA MeekREFERENCE: 0714-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6388
Name of Scheme:	Surfers Plaza Resort
Address of Scheme:	4 Rememberance Drive SURFERS PARADISE QLD 4217

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

Michael John Leigh, the owner of lot 23



RA MeekI hereby order that the application by Michael John Leigh, the owner of lot 23, for an order to void the annual general meeting of 30 March 2001 and declare that only resolutions carried which involved expenditure (except emergency) be stopped, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0714-2001

“Surfers Plaza Resort” CTS 6388

The applicant, Michael John Leigh, the owner of lot 23, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

... to void the meeting and declare that only resolutions carried which involved expenditure (except emergency) be stopped.

Section 223(1) 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, by way of explanation –

I request that your department waive the 3 month time limit on this application because mainly because I took an inordinate amount of time to complete the submission and I don’t know anything about your time limit.

The applicant is referring to the requirements of section 193 of the Act which provides –

193 Time limit on certain applications

(1) This section applies to an application for an order declaring void—

(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or

(b) a resolution of the committee or body corporate; or

(c) the election of an executive or other member of the committee.

(2) The application must be made within 3 months after—

(a) if subsection (1)(a) applies—the meeting; or

(b) if subsection (1)(b) applies—the meeting at which the resolution was passed or purported to be passed; or

(c) if subsection (1)(c) applies—the meeting at which the executive or other member was elected.

(3) However, if the making of the application does not comply with subsection (2)—

(a) the commissioner must deal with the application (including making a case management recommendation for the application) as if the making of the application complied with subsection (2); and

(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

The applicant is outside the time limitation of 3 months for the making of this application. The applicant provides as his reason for such non-compliance as “mainly because I took an inordinate amount of time to complete the submission and I don’t know anything about your time limit”. The time limitation is imposed to allow bodies corporate some certainty; namely that after three months from the passing of a resolution, a body corporate could be reasonably certain that it could implement a resolution without its validity subsequently being challenged.

I intend to dismiss this application for two reasons. Firstly, I do not consider that the applicant has provided “good reason” why I should waive the non-compliance. “Good reason” implies some requirement that the applicant was for some good reason prevented from making the application, or that the interests of the body corporate or a particular owner are not served by the time limit being adhered to. I do not find this to be the case here. As the applicant acknowledges here, the failing was of his own doing, simply because it seems he was ignorant of the time limitation.

A further, and compelling reason, to not waive the time limitation is that the applicant’s interest in the lot has been sold, with settlement being effected on 20 July 2001. My understanding is that the sale was not consensual, but rather by way of mortgagee in possession. Given that the applicant is no longer an owner, one questions the benefit to the body corporate of potentially having a meeting invalidated on the application of a former owner. In my view, the applicant, though technically an owner at the time the application was made, no longer has an interest in the scheme, and as such, it is not in the interests of this scheme that the application be proceeded with.



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