The Surfers Manhattan [2002] QBCCMCmr 309 (17 May 2002)

RA MeekREFERENCE: 0289-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7230
Name of Scheme:	The Surfers Manhattan
Address of Scheme:	62 Old Burleigh Road SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for The Surfers Manhattan

RA MeekI hereby order that the application by the Body Corporate for The Surfers Manhattan, for an order declaring the election to be valid and to waive compliance with section 13 requirement, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0289-2002

“The Surfers Manhattan” CMS 7230

The applicant, the Body Corporate for The Surfers Manhattan, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

... for an order declaring the election to be valid ... (and) to waive compliance with (section 13) requirement.

The body corporate has also sought the following interim order of an adjudicator, quote –

That pending the final order given in this matter, the committee appointed at the AGM held on 20/03/02 is declared to be validly appointed.

Section 225(1) 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)).

The circumstances of this application are fully set out in the grounds, and I do not intend to restate them, except to indicate that at the AGM held on 20 March 2002 (the meeting), the election was not conducted strictly in accordance with the requirements of section 13 of the standard module, in that the notice inviting submission of motions and nominations for election to the committee was not sent out in the requisite time period. This resulted in the period for responding to this notice being extended. The failure to comply is stated to be due to an administrative oversight on the part of the body corporate manager and elected secretary.

One owner has written to the body corporate regarding several motions on the agenda and also the election. On the basis of this objection, the body corporate have sought an order, firstly by way of interim, that the committee election is deemed to be valid pending the making of a final order, and by way of final order, that the election is deemed to be valid.

Adjudicators of this office have established a principle regarding applications which seek to validate, rather than invalidate, either a meeting, or certain aspects of a meeting. The basis for this principle was set out in an order to a previous application (No. 0708 of 1998), part of which Adjudicator’s statement of reasons provided, quote -

In effect, the applicant seeks a declaration that the meeting has been validly convened. The resources of this office are not such that this office is able to undertake a complete investigation, particularly at an interim stage, of all aspects of the meeting, and declare it to have been validly convened, as the applicant seeks. If this office adopted the course of action sought of it by the applicant, then I consider that this would lead to multiple similar applications, which would be beyond the resources of this office.

Rather, I consider the onus is upon the applicant as the secretary having convened the meeting, to ensure that requirements of the Act and Standard Module were complied with, and provided the applicant has done this, then the meeting will presumably withstand any challenge directed at its validity by others. I consider that it is in this latter scenario that this office should involve itself. That is, if there is a challenge to the validity of the meeting after it having been convened or held, then this office should investigate such challenge, and make such orders as considered appropriate. ...

I acknowledge that the current application seeks only to validate the election of the committee at the meeting, and not the meeting per se. Nevertheless, I consider the principle to be equally applicable. If this office were to investigate meetings with the view to declaring them to be procedurally valid, then it is considered that this approach would invite many applications seeking this declaration, particularly where there are ongoing levels of disputation within schemes (of which there are many).

Investigating such applications would in itself be problematic in that there would be no clear focus of the particular investigation. By necessity, it would need to consider each and every aspect of the procedure for convening and holding the meeting, before any declaration as to the validity of the meeting could be given. In contrast, where an application seeks to invalidate a meeting, then the basis of invalidation is (usually) stated, and it is this particular basis on which the investigation focuses.

To adopt the approach of investigating the validity of meetings, rather than allegations of their invalidity, would exhaust the resources of this office, due both to the number of such applications which might be made, and further, the necessary breadth of such investigations.

Given this principle, I intend to dismiss this application. If any owner considers the meeting, or any aspect of it, to be invalid or not in compliance with the legislation, they are entitled, subject to the time limits set out in section 193 of the Act, to make application to this office seeking invalidation, either of the meeting or the particular aspect. Until such time as an application is made, and there is an order in respect of that application, I consider a body corporate is entitled to proceed on the assumption that the meeting, or aspect, is valid. If it were otherwise, then bodies corporate would not be able to operate effectively.

In the circumstances, it is not intended to invite submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.