Lakeshore Villas 6 [2002] QBCCMCmr 34 (25 January 2002)

RA MeekREFERENCE: 0508-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4082
Name of Scheme:	Lakeshore Villas 6
Address of Scheme:	10 Lakeshore Avenue NORTH BUDERIM QLD 4556

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

Noreen George, the owner of lot 2



RA MeekI hereby order that the application by Noreen George, the owner of lot 2, for an order that the commission make an order to the owners to obtain professional services to the value of $400 (costs to be shared) to conduct a general meeting and set up the correct structure in accordance with the Body Corporate & Community Management Act of 1997, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0508-2001

“Lakeshore Villas 6” CTS 4082

The applicant, Noreen George, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I request that the commission make an order to the owners to obtain professional services to the value of $400 (costs to be shared) to conduct a general meeting and set up the correct structure in accordance with the Body Corporate & Community Management Act of 1997.

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 –

I have sought professional assistance as suggested in communication from your office dated 20/6/01 to resolve the many issues that need to be documented. Please see the attached copies of correspondence from KBH Management. Also please refer to previous order 0048-2001.

I have noted the correspondence attached to the application. I have also considered the terms of order 0048 of 2001. So far as it is specifically relevant to this application, I quote as follows –

Until a meeting takes place where the matters in dispute are considered and voted on formally, the exact feeling regarding the various matters will remain uncertain. Because of the ill-feeling between the parties, they may wish to either engage a professional to convene the meeting, or at least some neutral party to chair the meeting. That is a matter for the parties to decide. I would only point out that under the provisions of section 11(4) of the Standard Module, if the owners cannot agree on who should hold the positions of chairperson, secretary and treasurer then they hold them jointly. I note some references to Nizamian being the secretary then later the chairperson and George being the secretary. It seems to me that joint positions is the current state of the owners as no valid meetings appear to have been held appointing either of them to one or more of the positions. I have mentioned this to assist owners in convening the meeting.

The owners of lot 1, Miro and Marina Nizamian, have responded to this application, opposing it. They claim financial reasons (opposition to the cost) as well as practical reasons (no need) for opposing the application. The Nizamians’ conclude with –

It is not our fault if the other party is not willing to participate in general meetings.

I note the applicant did not submit reasons why the appointment of a professional to convene the meeting was required. The applicant did not indicate that she had sought to call a meeting and been refused, for example.

The previous order did not require the appointment of a professional to convene the meeting. Rather it indicated that a meeting was required to be held “where the matters in dispute are considered and voted on formally”. It then suggested that “Because of the ill-feeling between the parties, they may wish to either engage a professional to convene the meeting, or at least some neutral party to chair the meeting. That is a matter for the parties to decide.”

As the order stated, the appointment of a professional is a matter for the parties to decide. It would not be appropriate for an order to require the appointment of a professional, where this was opposed by one of the owners. This is so particularly were the applicant has shown no evidence of any attempt to contact the other party for a meeting. Accordingly I have dismissed the application.


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