Braniff Villas [2002] QBCCMCmr 23 (18 January 2002)

P J HANLYREFERENCE: 0428-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9300
Name of Scheme:	Braniff Villas
Address of Scheme:	92 Boundary Street BEENLEIGH QLD 4207

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

Alan Keith Fenwick, the owner of lot 7



I hereby order that the application for an order that an extraordinary general meeting be called and nominations be accepted to elect a new committee is dismissed.

I further order that the purported appointment of the body corporate manager, contained in the instrument of appointment dated 10 May 2000, was at all times void.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0428-2001

“Braniff Villas” CTS 9300

The applicant, Alan Keith Fenwick, the owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That an extraordinary general meeting be called and nominations be accepted for and to elect a new committee.

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 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 the instrument of appointment of the body corporate manager does not comply with the requirements of the Accommodation Module (by which this scheme is regulated), and the engagement is therefore void. The applicant further states that the body corporate manager is the non-voting member of the current committee of three and with his removal, the body corporate will no longer have a properly formed committee.

The body corporate committee and the body corporate manager were invited to respond to the application. The chairperson and a committee member forwarded submissions, as did the body corporate manager. The chairperson, Frederick O’Connor, stated that he was elected at the annual general meeting held on 13 July, 2001, together with all other committee members. The chairperson further stated that he occupies the position of chairperson until the next annual general meeting, to be held in March 2002.

The committee member, Ms Joanne Field, stated in her submission that an extraordinary general meeting was to be held on 19 September 2001. She further stated that the committee, of which she is part, has been elected until the next annual general meeting. She concluded her submission stating that she is happy with the agreement made with the body corporate manager, Frank Burke Body Corporate Services.

The body corporate manager stated in his submission that an extraordinary general meeting had been called for 19 September 2001. He further stated that a committee had been elected at the annual general meeting held on 13 July 2001, three days after the requisite number of owners signed the notice requisitioning an extraordinary general meeting. The body corporate manager also stated that his engagement as body corporate manager does comply with section 76(2) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

I do not propose to make the order sought by the applicant for several reasons. Firstly, an election of committee members occurred at the annual general meeting held on 13 July 2001. Those committee members remain in office until the next annual general meeting, due in March 2002, unless they resign, or are otherwise removed. Secondly, an extraordinary general meeting was held on 19 September 2001, in response to the notice requisitioning such a meeting, although it did not specifically deal with the issues requested. Thirdly, with the passage of time, the next annual general meeting is almost due, at which a further election of committee members will take place.

However, I will comment upon the validity of the body corporate manager’s appointment. The instrument of appointment dated 10 May 2000 refers to the fact that the body corporate manager was appointed pursuant to a resolution of the body corporate passed in general meeting on 10 May 2000. The minutes of the annual general meeting held on 10 May 2000 do not record any resolution to that effect. There was no motion dealing with body corporate management at all.

Section 85 of the Accommodation Module provides as follows:

Authority to make engagement or give authorisation [SM, s 87]

85.(1) The body corporate may engage a person as a body corporate

manager or service contractor, or authorise a person as a letting agent, only

if—

(a) the engagement or authorisation is approved by ordinary

resolution of the body corporate;19 and

(b) the terms of the engagement or authorisation are included in the

material forwarded to members of the body corporate for the

general meeting that considers the motion to approve the

engagement or authorisation.

(2) If subsection (1) is not complied with, the engagement or

authorisation is void.

(3) A body corporate may agree to the amendment of an engagement or

authorisation mentioned in subsection (1) only if the amendment is

approved by ordinary resolution of the body corporate.

(4) If subsection (3) is not complied with, the amendment of the

engagement or authorisation is void. (emphasis added)

The instrument of appointment dated 10 May 2000 is also defective insofar as it does not state the fee payable to the company. Although the applicant has not specifically sought an order in this regard, he has stated in his grounds that the instrument of appointment does not comply with the requirements of section 76(2) of the module, and is therefore void. He has not referred to section 85 of the module. There is no doubt, however, that in the absence of approval by the body corporate in general meeting, as required by section 85(1)(a) of the Accommodation Module, then under section 85(2) of the Accommodation Module, the engagement of the body corporate manager was at all times void and I have ordered accordingly. There are clear ramifications for the alleged body corporate manager, and for the body corporate, as a result. 2n