Raintree Gardens [2002] QBCCMCmr 387 (14 June 2002)

RA MeekREFERENCE: 0728-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1150
Name of Scheme:	Raintree Gardens
Address of Scheme:	108 Mayers Street MANUNDA QLD 4870

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

John Becker, the owner of lot 1, Susan Windler, the owner of lot 3, John Zembsch, the owner of lot 5 and Michael Dolan, the owner of lot 9



RA MeekI hereby order that within two months of the date of this order, the body corporate for Raintree Gardens shall convene and hold an EGM at which it will consider the appointment of a body corporate manager.

I further order that within seven (7) days of the date of this order, the secretary shall send a copy of this order and statement of reasons to each owner appearing on the roll, and further, that the secretary will not give notice of the meeting until at least twenty-one (21) days after the date of this order.

I further order that the meeting might consider any other motion validly before it, including any motion submitted to the secretary by an owner within three weeks of the date of this order.

I further order that Trimble Real Estate Pty Ltd shall be authorised to continue to provide body corporate management services to the body corporate until the time such meeting is held.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0728-2001

“Raintree Gardens” CTS 1150

The applicants John Becker, the owner of lot 1, Susan Windler, the owner of lot 3, John Zembsch, the owner of lot 5 and Michael Dolan, the owner of lot 9 have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate should terminate the agreement entered into with Meg Trimble Real Estate.

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)).

The order sought is that I terminate the agreement between the body corporate and Trimble Real Estate Pty Ltd (Trimble). I will explain at the outset that this office does not exercise a jurisdiction to terminate contractual arrangements or relationships simply on the request of a party. Rather, this office might, upon the making of an application and after necessary investigation, invalidate a resolution proposing the appointment or engagement of a service contractor, letting agent, or body corporate manager, or other contractor, where there is a defect in the method of appointment warranting the invalidation of the motion. However, this is to be contrasted from the circumstance of simply terminating a contract on the request of an owner or group of owners for reasons which do not relate to the validity of the appointment, but rather refer to performance for example. I suggest the grounds relied on in the current application falls into the latter category. For example, the applicants allege –

• Giving the manager writing notice to fix fence palings or to sort out the dangerous coconut situation;

• Alleged refusal to open a pool toilet door or provide a key “as promised”.

These allegations I would categorise as performance issues. I suggest that there is some confusion here about the correct approach. Individual owners should in the first instance address their concerns or issues to the committee, who’s responsibility it is to attend to matters on behalf of the body corporate. It would then be for the committee to instruct the manager, if considered appropriate.

The applicants next make a series of general allegations, for example –

• The chairperson was also the gardener and also voted;

• Members taken on by the chairperson before the AGM;

• Didn’t get a copy of a resolution passed at a meeting and didn’t get any minutes.

The applicants do not reference these allegations to any particular meeting, or include copies of any documentation to substantiate their allegations. In the circumstances, I am simply not prepared to look seriously at these allegations.

Upon reading the application, and in particular, the reply of the applicants to submissions, it becomes clear that the applicants’ principle objection is to the manager appointed, (Trimble) and to a lesser extent, another owner, Kinney Murray. It is clear that the applicants were satisfied with the services provided by a previous manager, and are opposed to the role played by Murray in the termination of that manager, and the appointment of Trimble. However, if an owner or group of owners is opposed to a situation occurring within their body corporate, then the way to seek to change this is raise the issue within the means provided for in the legislation, namely to propose motions for inclusion on the agenda of meetings. For example, if an owner or owners are dissatisfied with the performance of a particular contractor or manager engaged by the body corporate, then they might propose a motion to the effect that the services of the contractor or manager be terminated. If there is sufficient support for this proposal, then presumably the proposal will be carried, and thereafter given effect to by the committee whose role in part is to implement decisions taken by the body corporate in general meeting.

There is one aspect of the applicants’ reply which I wish to follow up. On the second page it is stated –

We’ve never been informed of a ballot for Meg Trimble, who is now 6 months over her 12 months period and now presumes she’s in for the next 3 years.

In investigating this aspect, I requested copies of the minutes of the meeting at which Trimble was appointed, and the last AGM. I note that Trimble was appointed by motion 2 at the EGM held on 7 March 2001. Of 28 owners, the motion was carried by 15 “yes” votes and 2 “no”. I note that the motion states that the appointment is “for a period of one year from 23/11/00. Consequently, the appointment would have terminated on 22/11/01. The minutes of the AGM held on 20 March 2002 did not include any motion to re-appoint Trimble. I therefore queried the basis of the continued appointment of Trimble.

In response, Trimble explained that the continuation was automatic under the terms of the original appointment. Clause 2 provides as follows –

a) The engagement begins and ends on the dates stated in item 1 of schedule 1.

b) The engagement will be extended by the body corporate for one year from the end date stated in item 1 of schedule 1 unless the body corporate decides at a general meeting before that date to end the engagement.

c) However, the engagement (allowing for renewals under clause 2(b)) must not run for more than three years from the beginning.

I consider the provisions of clause 2 is in breach of the legislation. The original agreement was for a one year term. Without any further action on the part of the body corporate, the term might in fact extend to three years. This automatic extension of the contract is not what owners agreed to in resolving to appoint Trimble for one year. I consider that owners are entitled to reconsider the appointment of a manager after the specified term of the manager has expired, or if convenient, shortly before the term is due to expire.

In the circumstances, I intend to order that this body corporate, within two months of the date of this order, convene and hold an EGM at which it will consider the appointment of a body corporate manager. I further intend to order that within seven (7) days of the date of this order, the secretary will send a copy of the order and statement of reasons to each owner appearing on the roll. I further intend to order that the secretary will not give notice of this meeting until at least 21 days after the date of this order. This is so that all owners will understand the reason for the holding of a further meeting, and further, will allow all owners to submit motions for inclusion on the agenda if they so choose.

I further intend to order that the meeting might consider any other motion validly before it. This will include any motion submitted by an owner within three weeks of the date of this order. This will enable owners to submit motions proposing the appointment of a manager of their preference, or any other motion for that matter. I further intend to order that Trimble is authorised to continue to provide management services to the body corporate until the time such meeting is held. Thereafter, it will depend on which management company is appointed at the meeting which I have ordered be convened to consider and determine this issue.


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