Cambridge Street Town Houses [2002] QBCCMCmr 142 (15 March 2002)

DPGardinerREFERENCE: 0644-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20471
Name of Scheme:	Cambridge Street Town Houses
Address of Scheme:	40 Cambridge Street RED HILL QLD 4059

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

Ms Eve Francis Wicks, the Owner of lot 8



DPGardinerI hereby order that the application for an order that motions 6 and 7 passed at an Extraordinary General Meeting of the Body Corporate held on the 19^th July 2001 be declared invalid is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0644-2001

“Cambridge Street Town Houses” CTS 20471

The applicant Ms Eve Francis Wicks, the Owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

‘DPGardinerthat motions 6 and 7 passed at an Extraordinary General Meeting of the Body Corporate held on the 19^th July 2001 be declared invalid."2n

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 she did not receive notice of the extraordinary general meeting held on 19^th July 2001, and that had notice been received, she would have voted against motions 6 and 7. Each of these resolutions was passed without dissent by those entitled to vote at the extraordinary general meeting.

The motions in question were in the following terms:

“6.

That the Contribution Lot Entitlements for the Administrative and Sinking Fund levies be equal so that all owners contribute equally to the maintenance and improvement of the common areas of the complex (pool, garden, walkways, car park, driveway etc. ).

7.

That under Section 55 of the Body Corporate and Community Management Act 1997, the Body Corporate consents to the recording of a new Community Management Statement (CMS) whereby it amends the contribution lot entitlements. The Body Corporate will cause the new CMS to be recorded with the Registrar of titles as soon as practicable.”

Strictly speaking, Motion number 7 should have been characterised as a Resolution without dissent and not a Special Resolution. However, this omission is of no significance as this motion was passed without dissent. Whilst there were two motions tabled dealing with issues related to the community management statement, only one motion was really needed as the passing of motion number 6 necessitated the recording of a new community management statement.

By reason of the provisions of sections 55 and 57 of the Act, these resolutions must be passed without dissent.


In light of the Applicant’s statement that she would have voted against these resolutions, it is necessary to examine the question of service of the notice of the emergency general meeting.

The CMS statement provides that the standard module is the applicable regulation module. Section 42(1) of that module provides:
“Written notice of a general meeting must be given to the owner of each lot included in the scheme, and if not given personally must be sent to the owner at the owner’s address for service.”

The information provided establishes that the notice of the holding of the extraordinary general meeting on 19^th July was duly posted to the Applicant on the 14^th June 2001 together with a copy of the draft community management statement as required by section 50 of the Act.. As the notices were posted on 14^th June 2001 and the meeting was held on the 19^th July 2001, the requirement imposed by section 61 (3) of the Act has been met.

I find that service by post was effected in accordance with the provisions section 42 of the module and of sections 39 and 41 of the Acts Interpretation Act 1954 which permits service by post as occurred in this case.

The notice of the committee meeting scheduled for 8^th February 2001 listed the draft community management statement on the agenda.

The Applicant attended a committee meeting on the 6^th March 2001 when the issue of the draft community management statement was discussed with the minutes recording that no further changes were required with the proposal to change the community management statement to be included in the agenda for the annual general meeting.

The Applicant did not attend the committee meeting on the 17^th May 2001 with the minutes recording there was a brief discussion about including a motion for the extraordinary general meeting to make the lot entitlements more equitable. A separate entry indicates that Ms.Wanke, the chairperson of the body corporate committee, was to contact the Applicant regarding the progress of certain works.

I have compared the current community management statement and the community management statement which preceded the current community management statement. The only difference of any significance is that the total of contributions for all lots has reduced from 206 to 160 with the Applicant’s individual contribution remaining at 20. Thus, the Applicant’s overall percentage of lot entitlements has increased from approximately 10 % to 12.5%.

This is a scheme comprising 8 lots. The minutes of the extraordinary general meeting show that 2 of the lot owners were present together with the body corporate manager. Because one of these lot owners held the proxy of another lot owner who was not present, there were 3 persons entitled to vote at this meeting sufficient to provide a quorum.

Following receipt of the application, submissions were sought from all owners. Submissions were received from the body corporate manager and the owner of lot 5 who is also the chairperson of the body corporate committee.

I note in the response of the Applicant to submissions received from the body corporate manager and the chairperson of the body corporate committee that the Applicant asserts that the owner of lot 4 claims that she did not receive notice of the extraordinary general meeting. As a submission was not received from the owner of lot 4, I do not attach any significance to this assertion as it has not been directly made by that person and I am not prepared to act on such an assertion as indicating that postage of the notice of the extraordinary general meeting did not occur.

The Applicant also asserts that the extraordinary general meeting was not called in strict conformity with section 40 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). I am not persuaded that manner in which the emergency general meeting was called failed to comply with section 40 when regard is had to the notice of the emergency general meeting and the notices and minutes of meetings of the body corporate committee.

Moreover, even if there were substance in this assertion regarding non-compliance with section 40 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module), such an irregularity would be sufficiently trivial that it would not be just and equitable to invalidate the meeting on that basis.

I would also refuse to make an order declaring the meeting to be invalid as no such order was initially sought and therefore no consideration was given to this question by those respondents who provided submissions. In other words, to do so would mean that the respondents were denied procedural fairness.

In the conduct of this adjudication, I have taken all the information into account even though no specific reference is made to some of the information provided.

In light of the facts as presently explained, I consider that the extraordinary general meeting was conducted in accordance with the Act and the standard module and that no sufficient basis has been shown to warrant the making of the orders sought in the application.

As a result, the application is dismissed.


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