Cadagi Court [2002] QBCCMCmr 335 (28 May 2002)

DP GardinerREFERENCE: 0164-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18137
Name of Scheme:	Cadagi Court
Address of Scheme:	100 Beerburrum Street CALOUNDRA QLD 4551

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

Mr Gary Burton & Ms Lynette Owen, the Owner(s) of lot 15



DP GardinerI hereby declare that motion number 1 passed at a body corporate committee meeting on the 2^nd February 2002 is deemed to be a resolution passed by the body corporate in general meeting.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0164-2002

“Cadagi Court” CTS 18137

The applicant Mr Gary Burton & Ms Lynette Owen, the Owner(s) of lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“that motion no. 1 passed at the committee meeting held Saturday 2^nd February 2002 be rescinded or declared invalid”.

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 the committee voted to rescind a motion ( re: parking on common property ) that was passed on 9^th February 1995 by the body corporate. It is our belief that the above motion was not legal and should be voted on by the body corporate as such, not just the committee.

The minutes of the committee meeting state that 4 members of the committee were present 5 members of the body corporate present as invited observers, the proxy for John O’Neill was held by TF Hagan and a letter stating “feelings” from a Mr.& Mrs. Hartley. Apologies were received from 5 people.

The minutes further record:

“ The meeting was opened by Trevor F Hagan at 1423 hrs and all attending were briefed on procedures to be adopted throughout the meeting eg .the reason that all owners and tenant 1 were invited was so that they would know what was discussed at the meeting and they all would be asked to state their feelings”.

Motion no. 1 that the motion on the books on the books allowing owners and tenants to park on common property that was passed on 9^th February 1995 be rescinded was passed by “all attending”.

Motion no. 2 was also passed by “all attending”.

Motion no. 3 that all owners and occupying tenants be advised that the 3 grassed areas beside the Nicklin Way end of the units are common property and No Parking at Any Time except for maintenance or mowing reasons was passed by “all attending”.

On 20 May 2002, Mr. Hagan as the chairman of the body corporate supplied a copy of the notice sent out to owners and tenants giving notice of the body corporate committee meeting due to be held on 1^st June 2002.

Section 92 of the Body Corporate and Community Management Act 1997 provides that a decision on a restricted issue is not a decision of the body corporate.

This is a scheme to which the provisions of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) apply. Section 26 provides that a decision is a decision on a restricted issue for the committee if it is a decision that may only be made by resolution without dissent, special resolution, or ordinary resolution of the body corporate.

By-law 2 of the Standard By-Laws provides:

1. The occupier of a lot must not, without the body corporate’s written approval –

(a) park a vehicle, or allow a vehicle to stand, on the common property; or

(b) permit an invitee to park a vehicle, or allow a vehicle to stand, on the common

property.

2. An approval under subsection (1) must state the period for which it is given.

3. However, the body corporate may cancel the approval by giving 7 days written notice to

the occupier.

Read together, the combined effect of the Act, the Regulations and the by-laws when applied to the existing circumstances means that the body corporate committee did not have the power to pass the motion it purported to pass and with which this application is concerned.

As a result, the resolution described as motion no. 1 purportedly passed by the body corporate committee at its meeting on 2^nd February 2002 was at all times void.

However, the Act permits an adjudicator to make an order that is just and equitable in the circumstances to resolve a dispute. Whilst the meeting was a committee meeting in the formal sense, notices were sent to all lot owners with the attendance being 11, 4 people having sent their apologies. The manner in which the meeting was called and subsequently conducted was reflective of a general meeting to the point where non-committee members fully participated in the meeting and “voted” in respect of the motions on the agenda.

In the result, I consider that the committee meeting was in effect a general meeting for the reasons set out above. Whilst the resolution in question is technically void, it is apparent that there has been considerable difficulty experienced as a result of the earlier motion which permitted car parking on common property.

There are two (2) options open to me. I may either require that this motion be considered by the body corporate in general meeting or deem the resolution passed to be a resolution passed at a general meeting.

The next general meeting is scheduled for the 1^st June 2002 which means that the motion could not be considered at that meeting. The cost of calling an extraordinary general meeting would be prohibitive.


Taking all these factors into account, I consider that the order that is most appropriate in the circumstances is a declaration that the resolution number 1 of the body corporate committee passed at its meeting on 2^nd February 2002 is deemed to be an order of the body corporate, a copy of that resolution being annexed to this order.