Forest Village [2001] QBCCMCmr 71 (9 February 2001)

P J HanlyREFERENCE: 0619-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21565
Name of Scheme:	Forest Village
Address of Scheme:	16 Forest Street, WOODRIDGE QLD 4114

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

Ross COLLISON, the owner of Lot 9



P J HanlyI hereby order that the application by Ross COLLISON, the owner of Lot 9 for an order that the Committee chosen at the Extraordinary General Meeting held on the 9^th September 2000 be declared invalid and that Mr Tom Harrison, Active Bodycorp Management Pty Ltd, be directed to call for nominations for Executive and Ordinary positions on the Committee, and subsequently be directed to convene an Extraordinary General Meeting of Owners, to determine the matter (should a ballot be required), or as directed by the Adjudicator, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0619-2000

“Forest Village” CTS 21565

The applicant, Ross Collison of Lot 9 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That the Committee chosen at the Extraordinary General Meeting held on the 9^th (sic) September 2000 be declared invalid and that Mr Tom Harrison, Active Bodycorp Management Pty Ltd, be directed to call for nominations for Executive and Ordinary positions on the Committee, and subsequently be directed to convene an Extraordinary General Meeting of Owners, to determine the matter (should a ballot be required), or as directed by the Adjudicator.

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

b) the exercise of rights or powers, or the contravention of the Act or the community management statement; or 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 a committee was not chosen at the Annual General Meeting (“AGM”) dated 5 July 2000 as the meeting was terminated, and that a committee was not elected until the Extraordinary General Meeting (“EGM”) dated 6 September 2000. Attached to the application is a pro-forma letter signed by the owners of 15 lots (excluding the applicant) in the scheme. This letter is addressed to the Commissioner for Body Corporate and Community Management and the persons signing this document support the appointment of Tom Harrison to call nominations for committee positions, to call an EGM to elect the committee and to appoint Active Bodycorp Management Pty Ltd as the body corporate manager. The applicant has also provided a copy of the minutes of the AGM dated 5 July 2000, the EGM dated 9 August 2000, and the EGM dated 6 September 2000.

A copy of the application was forwarded to the body corporate manager for distribution to the owners of a number of lots in the scheme.

The minutes of the AGM dated 5 July 2000 state that the office bearers are “To be determined at Extraordinary General Meeting scheduled for 9^th August 2000”. The minutes of the EGM dated 9 August 2000 state “Due to the manner in which the AGM was terminated, the selection of the Committee did not take place. Those validly nominated prior to the end of the Financial year would normally be chosen, however, their acceptance must be received. The issue of the Committee members is to be resolved at the EGM on the 6^th September 2000”. The minutes of the EGM dated 6 September 2000 indicate that Active Bodycorp Management Pty Ltd was appointed as body corporate manager for a period of one year, and that a committee of seven persons was elected.

It is the election which took place at this meeting that the applicant seeks to invalidate. In the grounds to the application, the applicant states that the validity is of concern to him and to others. By others, I presume that the applicant is referring to those owners who signed the pro-forma letter. However, neither Mr Collison nor these owners provide any evidence to support this concern. In an earlier undated letter to this office amending the application, Mr Collison states that it is unclear who nominated for committee positions prior to the AGM, and that the election of the committee at the September EGM was “negotiated”.

The submissions received opposing the application state that Mr Harrison of Active Bodycorp Management Pty Ltd was present at the September EGM and his expertise was relied upon in conducting the election, and that he did not indicate in any way during the meeting that the election was improper. These submissions do not provide any detail as to how the election was conducted, nor whether proper written nominations were used in this process.

Mr Harrison has provided this office with the following information regarding the election of the committee. In a telephone conversation with me on 16 November 2000, Mr Harrison stated that there were no nominations for the committee in the body corporate records relating to the AGM, and that the elections at the EGM were on the basis of nominations from the floor of the meeting. However, on 5 February 2000, a member of this office contacted Mr Harrison and requested a copy of certain body corporate records, including any written nominations for election to the committee which had been received before the end of the body corporate’s financial year. Mr Harrison then forwarded a copy of one nomination form completed by Robert Byrne nominating Brian Watts as chairperson and Kellie O’Dea as secretary. In relation to our request for a complete copy of the notice of the September EGM, Mr Harrison provided this office with a number of documents, including a form entitled “Election of Office Bearers” which listed the names of five of the persons subsequently chosen to the committee. Two of the names listed on this form were Brian Watts as chairperson and Kellie O’Dea as secretary.

The existence of the nomination form provided by Mr Harrison, the statement made in the minutes of the EGM dated 9 August 2000 regarding the nomination process, and the “Election of Office Bearers” form included in the notice of the EGM add credence to a view that written nominations were received by the secretary before the end of the body corporate’s financial year. I accept that there is no certainty as to the number of written nominations which were received. However, in the absence of specific grounds to the contrary (and in support of the application), significance must be given to this evidence.

The only ground to support the application is the general statement that the applicant and others were concerned about the validity of the election. Such a ground cannot be accepted without any supporting evidence. Certainly, the enlisted support from a majority of owners is not grounds for invalidation of the election of the committee. If sufficient owners desire a change in the composition of the committee, then appropriate decisions can be made by the body corporate at a properly constituted extraordinary general meeting (see sections 25 and 61 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module")).

While I am not satisfied that the entire process of the election of the committee was conducted in accordance with the Act and the Standard Module, I do not consider that there is sufficient evidence to support the order sought. Further, I do not consider that it is just and equitable to place the body corporate in a situation of the expense of an EGM so close to the end of the financial year (ie 31 May). Lot owners should note that the secretary will soon be inviting nominations for election to the committee for the next financial year in accordance with section 13 of the Standard Module, and that the AGM must be held within three months of the end of the financial year.

For these reasons, I have dismissed the application.

In addition, the applicant has referred to a decision made on motion 9 at the AGM dated 5 July 2000 where the body corporate decided not to be managed by a committee for a period of two years. I am not sure as to the intent of such a motion, but there must be a committee for the body corporate for a community titles scheme. The committee is primarily responsible for the day-to-day administration of the body corporate. A body corporate manager is not a substitute for a committee, but should be viewed as complementary to the committee. Even though a body corporate may engage a person as a body corporate manager, the Act reinforces the authority of the committee by providing, for example, that the committee cannot be prevented from exercising a delegated power (section 106), and a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee (section 92).

I am uncertain as to owners’ perception of the role of the body corporate manager. However, lot owners should be aware that a body corporate manager is defined by the Act to be a person engaged by the body corporate to supply administrative services (my underlining) to the body corporate. Section 106 of the Act provides a capacity for delegation to the body corporate manager and provides:
ÿ

“Delegation to body corporate manager

106.(1) The body corporate for a community titles scheme may delegate its powers to a body corporate manager, but only to the extent permitted under subsections (2) and (3).

(2) The body corporate—

(a) may delegate to the body corporate manager some or all of the powers of the body corporate’s committee, or of an executive member of the committee; but

(b) must not prevent the committee, or an executive member of the committee, from—

(i) exercising a delegated power; or

(ii) directing the body corporate manager about how a delegated power is to be exercised.

(3) A delegation under subsection (2) may be revoked at any time.

(4) The body corporate may not delegate its powers to a person other than under this section.”