Kookaburra Park Eco Village [2001] QBCCMCmr 7 (9 January 2001)

C G YOUNGREFERENCE: 0006-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco Village
Address of Scheme:	C/- M/S 368 GIN GIN QLD 4671

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Peter John O'SULLIVAN, owner of Lot 8, and Edgar Oswaldo JIMINEZ, a co-owner of Lot 38,

C G YOUNGI hereby order that the following resolution passed in respect of Motion 12 at a recent general meeting of the body corporate, “That, following the motion about Assurance by the Secretary and in case the secretary has not, in the opinion of the meeting, provided acceptable unqualified support for the decisions of the Body Corporate, he no longer be secretary or a member of the committee, and that this motion takes effect immediately at the declaration of the vote on this motion” 2y, not be implemented or otherwise acted upon until the application has been determined by final order.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0006-2001

“Kookaburra Park Eco Village” CMS 19671

The applicants, Peter O'Sullivan and Edgar Jimenez of Lots 8 and 38 respectively, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. That the motion (see Annex 1) which, inter alia, sought to restrict the Committee’s duties and responsibilities under the Act & Regs (Std Module) be declared null and void.

2. Further, that should a Committee member lose their position out of confliction (sic) of the duties & responsibilities prescribed under the Act & Reg and emanations from the motion in annex 1, that decision be declared null and void.

(Adjudicator’s Note: Annex 1 refers to the motion headed, “Proposal to adopt a new system of information management and decision making within the body corporate.”)

The applicants have sought an interim order in the following terms –

That an interim decision as in section 10 above be made forthwith pending the normal processing of the application.

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)).

It would have been better had the applicants written both the orders sought and the supporting grounds, in plain language rather than in the quasi-legal format presented which only makes it the more difficult to understand. The attachment pages of motions obviously refer to a recent meeting but no date or reference to the meeting is given. Also, the analogy with the “Nuremberg Trials” only serves to inflame opinions.

The core complaints of the applicants appear to be: (a) the motion stripping the committee of certain powers (hereafter “the motion”); (b) Motion 10 requiring public or written acceptance by the secretary (co-applicant O’Sullivan) of the motion, that correspondence be co-signed by the chairperson (or nominee) and secretary (or other committee member), and that the committee must put body corporate decisions into effect; (c) Motion 2 removing him as secretary; and Motion 8 which defines the term administrative nature used in the motion.

I think it will be of benefit to everyone if I give my views on a number of these matters so that owners when considering their submissions will know which matters to address.

Firstly, if a body corporate wishes to set general meetings for the year then I can see no contravention of the legislation in this. Of course the ability of the owners of 25% of the lots to requisition a general meeting under section 61 of the Standard Module (i.e. a “requested extraordinary general meeting”) to deal with certain matters will still operate. The motion does not say that it won’t. The applicants have not cited any legislative provision to support their complaint.

Secondly, the motion also requires that “any issue or proposal that is not of a purely administrative nature, regardless of whether the committee, according to the Act, would have the right or power to decide on such an issue”. What this does is to reserve all decision making to the body corporate in general meeting. I believe the body corporate can do this. Section 26 of the Standard Module sets out those matters that a committee is restricted from deciding on behalf of the body corporate, and it also includes the following power for the body corporate to extend those restrictions in paragraph 26(c) –

A decision is a decision on a restricted issue for the committee if it is a decision on an issue reserved, by ordinary resolution of the body corporate, for decision by ordinary resolution of the body corporate.”

That is, the body corporate can resolve to reserve to itself decisions on certain issues. While the body corporate has not set out the “issues” in the motion, I believe it can set the category as it has done by specifying it to be all issues except those that are of a purely administrative nature. Whatever areas of grey may have existed in defining the limits have been dispelled by Motion 8 which defines the term administrative nature. Both motions, when read together, exercises a discretion given bodies corporate under section 26(c).

Thirdly, in regard to Motion 9, the body corporate is certainly capable of deciding on such an administrative measures as requiring body corporate correspondence be signed by certain parties.

Fourthly, in regard to Motion 10, this is an unusual motion in asking the secretary (O’Sullivan) to either state publicly or provide in writing, an acceptance of the decisions of the body corporate. On its own this motion does not make sense, but it is part of a sequence of motions concerning the attitude to decisions of the body corporate. In any case, section 93(2) of the Act requires that “the committee must put into effect the lawful decisions of the body corporate”. The body corporate cannot dispense with the qualification and require the secretary carry out unlawful decisions. It appears that O’Sullivan believes he is being asked to carry out unlawful as well as lawful decisions of the body corporate.

The motion uses the words accepts without qualification the decisions of the body corporate. However, I note that the preliminary wording to the motion gives a reference to section 93(2) as follows –

“...[Relevant to Section 93.(2)(the committee must put into effect the lawful decisions of the Body Corporate)...”

Of course it would have been far better for the motion not to have contained the term unqualified or for it to have included words to show that only lawful decisions were in contemplation. What is important is what voters understood the motion to mean when they voted on the motion. It is important because Motion 12 was to remove the secretary if he did not satisfy the meeting in his response to Motion 10 (which response was voted on in Motion 11). Motion 12 states -

That, following the motion about Assurance by the Secretary and in case the secretary has not, in the opinion of the meeting, provided acceptable unqualified support for the decisions of the Body Corporate, he no longer be secretary or a member of the committee, and that this motion takes effect immediately at the declaration of the vote on this motion.

A body corporate has the power to remove a secretary (or other committee member) from office at anytime under section 25(f) of the Standard Module. Had this been a simple motion to that effect then it would be effective, however the motion predicates the removal on the notion that the secretary has refused to support the decisions of the body corporate without qualification, whatever that meant to the voters.

Until I have further evidence in the matter I will reserve my decision on the validity of this motion and I have therefore issued an interim order for the body corporate not to act on Motion 12 in the meantime.

I have determined that a copy of the application should be sent to all owners with an accompanying copy of this interim order. I understand that this will entail certain administrative costs (eg photocopying, postage) but I have no choice if I am to properly determine this application. Owners must be concerned over the ill-feeling, time and cost involved in the volume of applications for the scheme (seven in the last year alone).

This matter will now be investigated in accordance with the usual processes undertaken by this office. A case management decision will be made in due course regarding the final orders sought by the applicant.

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