La Porte D'Or [2001] QBCCMCmr 90 (15 February 2001)

RA MeekREFERENCE: 0604-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Jeno Czinder and Beverley Czinder, the owners of lot 64


RA MeekI hereby order that the appointment of Mr Ian Finlayson to the committee of La Porte D’or at the committee meeting held on 11 October 2000, is invalid and of no effect.

I further order that Mr Joseph Patane was validly elected as a member of the committee of La Porte D’or at the EGM held on 21 October 2001. y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0604-2000

“La Porte D'or” CTS 12681

The applicants Jeno Czinder and Beverley Czinder, the owners of lot 64, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that nine (9) resolutions purportedly carried at a committee meeting held in Melbourne on 11 October 2000 dealing with the acceptance by the committee of the resignation by several members of the committee, and the consequent appoint of those same members, and one other, to different positions on the committee, effective from 19 October 2000. The applicants further sought the appointment of Mr Stephen Dring as administrator of the body corporate.

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

On 20 October 2000, I made the following interim order in respect of this application.

RA MeekI hereby order that all motions to be considered at the EGM of the body corporate for La Porte D’or to be held on 21 October 2000 which seek that the positions of certain members of the committee be vacated (the motions), shall be considered and voted on as if the motions did not refer to the position which the member formerly held on the committee.

I further order that the motions shall be considered and voted on as if the motions simply referred to the person the subject of the motions, as being a member of the committee, provided this is in fact still the case.

y

I do not intend to re-canvass the grounds to the application as I consider I did this in the interim order. It seems that the interim order resolved the dispute, but for one outstanding issue. Following the EGM held on 21 October 2000 (the EGM), the committee was constituted with 8 members, being three executive committee members, and five ordinary members.

This anomaly occurred in consequence of the appointment of Mr Ian Finlayson as an ordinary member of the committee at the committee meeting held on 11 October 2000. As noted in the reasons for the interim order, this meeting was convened after notice of the EGM had been given. No consideration was given to the position of Mr Finlayson on the committee by those proposing the agenda items for the EGM, since at that time, it could not have been known that Mr Finlayson would be so appointed. The result of the EGM was that the positions of all other members of the former committee, excepting Mr Finlayson and one other former member who resigned before the EGM, were vacated. The EGM then proceeded to fill seven committee positions.

The question I now have to determine is that given that there are now eight members of the committee, and the standard module requires a maximum of seven, who should fill the seventh and final position – Mr Finlayson, as previously appointed to the committee, or the final member elected at the EGM, namely Mr Patane.

I have noted the comments in the minutes of the EGM regarding this issue. I further refer to the doubt which I expressed at the validity of the committee’s actions at the meeting on the 11^th October, 2000, quote -

Based on all the above considerations, I have serious reservations regarding the purpose and intent of the resolutions of the committee carried at the committee meeting held on 11 October, 2000, particularly in respect of their effect on the validity of motions to be considered at the EGM on 21 October 2000. Though it has not been argued to me, I have real concerns whether the provisions of section 25 of the standard module permit a committee to act in the manner which it has, regarding appointments to the committee. If necessary, I will canvass this aspect in the final order to this application.

I note that the terms of the interim order were not appealed. I therefore conclude that the parties at least accepted my finding sufficiently to consider a challenge to the order made not to be worthwhile. Given this, I do not intend to embark on a specific determination of the validity of the procedures undertaken at the committee meeting, and their compliance with section 25. I simply intend to order that the appointment of Mr Finlayson to the committee at the committee meeting held on 11 October 2000 to be invalid and of no effect. I consider this order to be appropriate given that –

• I have significant reservations regarding the validity of that meeting or at least the procedures adopted thereat;

• Moreover, even if not procedurally determined to be invalid, such meeting is liable to be set aside on the basis that it is just and equitable that it be so;

• Finally, I consider that the appointment of a committee member by the vote of 80 to 35 members of the body corporate in general meeting should be given precedence over a committee member appointed at a potentially invalid committee meeting, called and held with knowledge of an EGM called for 10 days after the committee meeting which was to exhaustively consider the make-up of the committee, and appointed by committee members who were removed from the committee at the subsequent EGM.

For the avoidance of any doubt, I have gone on to declare the election of Mr Joseph Patane at the EGM valid.