Marydale [2002] QBCCMCmr 259 (2 May 2002)

C G YOUNGREFERENCE: 0094-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4064
Name of Scheme:	Marydale
Address of Scheme:	186 Logan Street EAGLEBY QLD 4207

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

Herbert George FLINT, the owner of Lot 2,


C G YOUNGI hereby order that the application for the following orders by Herbert George Flint, as the owner of Lot 2 - 2n

That the meeting of 12 January 2002 be declared null and void (minutes enclosed).

That an outside impartial party with no vested interest in Marydale be appointed to call the budget and AGM meetings.

The former secretary from Jan 2000 to July 2001 Uldis Lingeberzins, handover all relevant data he holds about Marydale Body Corporate,

is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0094-2002

“Marydale” CTS 4064

The applicant, Herbert Flint of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“That the meeting of 12 January 2002 be declared null and void (minutes enclosed).

That an outside impartial party with no vested interest in Marydale be appointed to call the budget and AGM meetings.

The former secretary from Jan 2000 to July 2001 Uldis Lingeberzins, handover all relevant data he holds about Marydale Body Corporate.”

JURISDICTION:
This is a dispute by one owner against several other owners within the scheme, concerning the invalidation of a meeting, the appointment of an administrator, and the possession of body corporate records. It therefore plainly comes within the dispute resolution provisions of the Act (see sections 182, 183 and 223 of the Act).

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


PRELIMINARY COMMENTS;
This is one of two applications concerning the possession of the body corporate records, the holding of a committee meeting to prepare administrative and sinking fund budgets, and the holding of an annual general meeting which is now past due.

The other application, Application No. 95-2002, was lodged by Uldis Lingeberzins Lots 8, 10 and 14, who is also one of the respondents in this application, the others being Jan Whitehead (owner of Lots 5, 11, 13 and 15) and Graeme Hughes (owner of Lot 12). The respondent in Lingeberzins’s application is the applicant Flint.

Because both applications concern the same dispute, I have dealt with the matter fully in the reasons to Lingeberzins’s application and these same reasons are adopted as the core reasons for the complementary order to this application.


The reasons to Order 95-2002 made in respect of Lingeberzins’s application, which also apply here as applicable to the circumstances, are as follows –

“APPLICATION AND SUBMISSIONS:

The sequence of events so far as they are relevant in determining the applications, is as follows. The committee in place from July 2001 and on the morning of 12 January 2002, comprised Rita Malone as chairperson, Flint as secretary, Cheryl Jackman as treasurer, and two ordinary members, Ray Tatton and Ken Christensen. There may also have been another member named Bond though the accuracy of this is not relevant here. A meeting had been called for that day by the then committee to determine matters, including budgets, to be put at the impending annual general meeting.

At around 9.30am, written resignations from Malone, Flint and Jackman were handed to Tatton, along with advice that Ken Christensen also intended to resign. As Flint’s lot was the site for the meeting, he placed a notice on his door advising persons wanting to attend the meeting that they should go to (Tatton’s) Lot 7. The persons who turned up for the meeting were Lingeberzins, Whitehead, Hughes and Tatton.

These persons decided to proceed to hold a meeting and elected Lingeberzins as the chairperson for the meeting. I have before me a copy of the minutes of that meeting which is headed, “Extraordinary temporary committee meeting”. The motions, and the purported election of “acting” committee members, all appear to have arisen from the floor of the meeting, except for Motion 2, “Budget 2002-2003” whose subject was the prime purpose of the original meeting. However the minutes show that this motion was unable to be discussed or decided because the financial records were held outside of the meeting, allegedly by Rita Malone. The meeting purported to elect the following acting committee: Lingeberzin as chairperson; Whitehead as secretary; Hughes as treasurer; and Tatton as ordinary member.

Flint rejects the meeting as a valid meeting on the grounds that it was a committee meeting for which 7 days notice is required (see section 28 of the Standard Module regulations). He does not have any confidence that this acting committee will act fairly in the interests of all owners. Rita Malone, in her letter of resignation, complains that many problems have been caused by the tenants of Lingeberzins and Whitehead (who rent seven lots between them) without any assistance or intervention by those owners to control their tenants and prevent them annoying other residents. That lack of responsibility taken for the behaviour of their tenants, was also a complaint by Flint in the grounds to his application. He also complains that certain maintenance work in the scheme needs to be carried out but has been ignored.

Flint seeks the appointment of an independent person to call a committee meeting to determine the budgets, and to later call and chair the annual general meeting.

DETERMINATION:

To better understand the facts of the dispute and the positions of the parties, on Tuesday 30 April 2002 I conducted a teleconference with both Flint and Lingeberzins.

As I stated in the course of the teleconference, the most important task for the body corporate now is preparation for the annual general meeting, including the drawing up of appropriate budgets. For this task to be accomplished, the body corporate records, particularly the roll and the financial accounts, must be available. I have determined both applications on the imperative of the holding of the annual general meeting as soon as possible; unless this happens, the body corporate will run out of funds, other matters wont be resolved, and owners will lose confidence in their body corporate.

While the calling and the conduct of the meeting of 12 January could be voided on a number of grounds, including the “acting” committee appointments, it seems to me that, because those persons present at the meeting hold the majority voting rights for the body corporate (9 of the 16 lot votes), the appointments have the confidence of the majority vote. Rather than imposing on owners the expense of a professionally skilled Administrator appropriate for these circumstances, I consider that the acting committee, under the chairmanship of Lingeberzins, is able to carry out the task of both making preparations and the calling and conducting of the annual general meeting. I have therefore ordered that the “acting” committee will stand, but only for the limited purpose of calling the annual general meeting and carrying out any urgent or necessary committee obligations (eg payment of the body corporate insurance premium before the due date, but not approving an improvement to a lot). This office provides an information service for owners on Freecall 1800 060 119, and the committee can seek any assistance with meeting procedure, budget preparation, etc., it may require to properly carry out its duties.

During the teleconference, Flint stated that he now had possession of the body corporate financial and other records. Lingeberzins denied that he had not surrended all of the records when he stepped down as secretary in July 2001. Flint will need to promptly hand over all records to, as agreed, Graeme Hughes, for the committee members to use as necessary.

Having made my decision I wish to add a comment. There is a grievance felt by Flint , Malone and perhaps others, that letting owners such as Lingeberzins and Whitehead are only interested in having their lots tenanted without any consideration as to the character of the tenants and the effect of their behaviour on other occupiers. This is not an uncommon situation in community title schemes and it brings an obvious element of unfairness to both resident owners and tenants of good character. The legislation provides that all occupiers of lots have the right to the peaceful enjoyment of their lot and the common property, free of any nuisance by other owners, tenants or their invitees (see section 129 of the Act and the body corporate by-laws).

Additionally, the legislation requires that the body corporate must maintain the common property in “good condition” (see section 109 of the Standard Module). Flint has raised some matters of maintenance that the body corporate may or may not have to rectify – I do not know the location or nature of the maintenance and only advise the body corporate of its maintenance duty.” 2n

DETERMINATION:
The order to this application must necessarily complement Order 95-2002, and therefore I have dismissed the application.

I reiterate my comments made to Flint during the teleconference that both he and the other minority owners have the protection of the legislation, available by means of an application to this office, if the meeting or other events are not in accord with the legislation or are otherwise unjust. Of course he and other owners are expected to attempt to resolve any dispute or complaint with the committee, and only make application where necessary.

2n