The Groves Townhouses No. 2 Lawnton [2002] QBCCMCmr 319 (22 May 2002)

P J HANLYREFERENCE: 0215-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21068
Name of Scheme:	The Groves Townhouses NO. 2 LAWNTON
Address of Scheme:	20 Francis Road LAWNTON Qld 4501

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

Edward John Hutchinson, the co-owner of lot 9



I hereby order that the committee meeting purportedly held on 10 April 2002 was at all times void.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0215-2002

“The Groves Townhouses NO. 2 LAWNTON” CTS 21068

The applicant, Edward John Hutchinson, the co-owner of lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Committee meeting being held on 10 April 2002 is out of order.

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 committee meeting scheduled for 10 April 2002 was called by two committee members, rather than by the secretary, or in his absence, the chairperson (who is the applicant). The applicant further states that he received the agenda for the meeting on 9 April 2002. The applicant further states that, contrary to the assertion of the committee members, he is always contactable on his mobile phone. The applicant contends that the proper budget committee meeting was scheduled for 17 April 2002.

A submission was received from 3 committee members. These committee members stated that they decided to hold the committee meeting on 10 April 2002 as the meeting foreshadowed for 17 April 2002 did not suit two committee members. The committee members further stated that they tried to contact the chairperson, but to no avail. The committee members further stated that they also made an attempt to contact the chairperson through the secretary, who left a message on the chairperson’s mobile phone. The call was allegedly not returned by the chairperson. The committee members advised that they believed their actions were supported by the secretary, who gave his proxy for the 10 April 2002 meeting to one of the committee members.

Section 27 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) provides as follows:

Who may call committee meetings

27.(1) A meeting of the committee may be called by—

(a) the secretary or, in the secretary’s absence, the chairperson; or

(b) in the absence of both the secretary and the chairperson—another

member of the committee acting with the agreement of enough

members to form a quorum at a meeting of the committee.

(2) The secretary or, in the secretary’s absence, the chairperson, must call

a meeting if asked, in writing, to call the meeting by enough members of

the committee to form a quorum 9 at a meeting of the committee.

(3) The meeting must be held within 21 days after the secretary or

chairperson receives the request to call it.

(4) The secretary and chairperson may both be presumed to be absent if

the request for the meeting, addressed to the secretary and chairperson, is

given at the address for service of the body corporate, and no reply is

received within 7 days.

Although the secretary allegedly told the committee members that he was unwell, and had conveyed to the chairperson his intention to resign as secretary, he apparently had not resigned in writing, and was therefore still the secretary, at the time the meeting was called on 4 April 2002. There is no evidence before me that the secretary was unwilling to sign, or incapable of signing, the notice of meeting. There is also no evidence before me that the chairperson was absent, even though he allegedly did not return messages left on his mobile phone.

In addition, section 28(1) of the Standard Module provides that at least 7 days written notice of a committee meeting must be given to all other committee members. The term “given” has been construed by this office as meaning the date on which a notice is posted, or placed in a private delivery box in schemes with a large group of owner/occupiers, not the date on which the notice is received. However, the notice was dated and allegedly posted, on 4 April 2002, with the meeting scheduled for 10 April 2002.

Section 38 of the Acts Interpretation Act 1954 provides, in relation to the reckoning of time, as follows:

38 Reckoning of time

(1) If a period beginning on a given day, act or event is provided or

allowed for a purpose by an Act, the period is to be calculated by excluding

the day, or the day of the act or event, and—

(a) if the period is expressed to be a specified number of clear days

or at least a specified number of days—by excluding the day on

which the purpose is to be fulfilled; and

(b) in any other case—by including the day on which the purpose is

to be fulfilled.

(2) If the time, or last day of a period, calculated forwards that is

provided or allowed by an Act for doing anything falls on an excluded day,

the time, or last day, is taken to fall on the next day later that is not an

excluded day.

(3) If the time, or earliest day of a period, calculated backwards that is

provided or allowed by an Act for doing anything falls on an excluded day,

the time, or earliest day, is taken to fall on the next day earlier that is not an

excluded day.

(4) If no time is provided or allowed for doing anything, the thing is to

be done as soon as possible, and as often as the relevant occasion happens.

(5) In this section—

“excluded day”—

(a) for filing or registering a document—means a day on which the

office is closed where the filing or registration must or may be

done; or

(b) otherwise—means a day that is not a business day in the place in

which the thing must or may be done.

It therefore follows that inadequate notice of the committee meeting was given.

In all of the circumstances, I have ordered that the committee meeting held on 10 April 2002 was at all times void. Since the annual general meeting of 4 May 2002 was cancelled in any event, this order does not have any effect on that meeting. However, any other committee business purportedly transacted at the 10 April 2002 meeting will have to be reconsidered by the committee.