Sani Villa [2002] QBCCMCmr 109 (26 February 2002)

P J HANLYREFERENCE: 0048-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19428
Name of Scheme:	Sani Villa
Address of Scheme:	76 Condamine Street

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

Olly Terence Christison, the owner of lot 15



I hereby order that the application for an interim order that the body corporate manager and secretary must not implement any of the decisions made at the annual general meeting held on 15 January 2002 until the application is finally determined, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0048-2002

“Sani Villa” CMS 19428

The applicant, Olly Terence Christison, the owner of lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the annual general meeting of the body corporate for Sani Villa CTS 3850 held on 15 January 2002 be declared invalid null and void on the basis that many lot owners did not receive the proper written notices of the meeting.

2. All the previous nominations for the committee and the owners’ motions must be reconsidered.

The applicant has also sought the following interim order of an adjudicator, quote -

1. That the body corporate manager and secretary must not implement any of the decisions made at the annual general meeting held on 15 January 2002 until the application is finally determined.

Section 225(1) of the Act 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)).

In the supporting grounds, the applicant states that he, together with at least seven other lot owners, did not receive proper written notice of the annual general meeting. The applicant further states that he received verbal notice of the meeting from the scheme’s gardener on the day before the meeting was due to be held. The applicant further stated that he then attended the meeting, with seven other lot owners and their representatives, and advised the chairperson that the meeting was illegal and should not proceed. The applicant further stated that the body corporate manager offered voting papers to a number of people present at the meeting, but they rejected the offer on the basis that the meeting was invalid and voting would be pointless.

The body corporate manager and the body corporate committee were invited to respond to the application. A submission was received from the committee and from the body corporate manager. The submissions included copies of the meeting material forwarded to owners on 13 December 2001, and a statutory declaration detailing the names of each person or company to whom the material was sent.

I note that one of the owners supporting the application is the owner of lot 1, who, under the allegedly authorised signature of another person, states that she did not receive the meeting material. This owner, Catherine Marie Robinson, did not acquire her interest in lot 1 until 14 December 2001, the day after the meeting material was sent. The transfer was lodged in the Titles Office for registration on 19 December 2001, 6 days after the meeting material was sent. However, the Form 8 Information for Body Corporate Roll was not forwarded to the secretary until 7 February 2002. Hardly surprising, then, that Ms Robinson did not receive the notice of meeting, as the secretary was informed of her ownership of the lot 23 days after the meeting was actually held on 15 January 2002.

I further note that the owners of lot 14 acknowledged at the meeting that they had received the meeting notice, but were refraining from voting. Notwithstanding this acknowledgement, these owners have supported the application, signing a joint submission which states, in part: “Please note that I, along with many other lot owners could not send proxies, as none was sent to us.”

I further note that the owner of lot 23, who also allegedly did not receive the meeting notice, had sent in a voting paper.

I further note that apologies were tendered on behalf of another four owners, of lots 6, 11, 13 and 27, who also allegedly did not receive the meeting notice.

In a reply to the submissions, the applicant states that Mike Cullen does not own any unit at Sani Villa. As the applicant well knows, Mr Cullen did own lot 1 at Sani Villa, until he sold it to Ms Robinson on 14 December 2001. Accordingly, at the time that the notice of meeting was sent out, he was still recorded on the body corporate roll as the owner of lot 1. The earlier discussion in relation to the change of ownership of lot 1 to Ms Robinson applies.

The applicant further states that the body corporate manager has made many assumptions in her submission. The applicant further alleges that the body corporate manager has made false and misleading statements. The applicant does not identify such statements and assumptions.

I have been asked to order that the body corporate not implement any decisions made at the annual general meeting held on 15 January 2002. I do not propose to make such an interim order, which would have the effect of stopping the day-to-day administration of the body corporate and could therefore have significant consequences for all owners.

This will not prevent me from making final orders as sought by the applicant, if the evidence supports the making of such orders. In the meantime, however, I propose to seek submissions from all owners before making my final order. I have been provided with a list of owners from the body corporate roll, and I have also been provided with the change of ownership details for lot 1. There has been no change of ownership notified to the secretary in relation to lot 20, in spite of the fact that Deluxe Year Development Pty Ltd transferred the lot to Edith Ngan Ming Lam on 28 December 1998. A member of the Commissioner’s staff was today informed by the body corporate manager that Ms Lam is a director of Deluxe Year Developments, and therefore levy notices and presumably notices of meeting are being received. It is of course incumbent on the new owner of a lot to advise the body corporate of the details of change of ownership for the roll. It is also incumbent on any owner who changes address to advise the body corporate of that change, in accordance with section 141 of the Accommodation Module. The submission notices will be sent by this office to each of the owners listed in the statutory declaration provided by the member of the body corporate manager’s staff.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.