Kellys Beach Resort [2002] QBCCMCmr 515 (22 August 2002)

RA MeekREFERENCE: 0333-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3642
Name of Scheme:	Kellys Beach Resort
Address of Scheme:	7 Trevors Road BARGARA QLD 4670

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

Holmes-A-Count Pty Ltd, the owner of lot 11



RA MeekI hereby order that the application by Holmes-A-Count Pty Ltd, the owner of lot 11, for an order that the body corporate for Kellys Beach Resort be ordered to comply with section 35(2) of the Accommodation Module were copies of minutes of committee meetings and copies of resolutions passed by the committee are given to the owner of lot 11 within 21 days after the meetings have been held or the resolutions have been passed, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0333-2002

“Kellys Beach Resort” CTS 3642

The applicant, Holmes-A-Count Pty Ltd, the owner of lot 11, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate for Kellys Beach Resort ... be ordered to comply with section 35(2) of the ... Accommodation Module were copies of minutes of committee meetings and copies of resolutions passed by the committee are given to the owner of lot 11 within 21 days after the meetings have been held or the resolutions have been passed.

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 relevant section, section 35 of the Accommodation Module, provides as follows -

35 Minutes and resolutions [SM, s 37]
(1) A copy of all minutes of the committee, and a copy of each resolution of the committee not included in minutes of the committee, must be given individually to each lot owner, other than a lot owner who—
(a) has instructed the secretary that the lot owner no longer wishes to be given copies of minutes and resolutions; and
(b) has not withdrawn the instruction.
(2) A copy required to be given under subsection (1) must be given within 21 days after—
(a) for a copy of minutes—the holding of the meeting to which the minutes relate; or
(b) for a copy of a resolution not included in the minutes of the committee—the passing of the resolution.
(3) If there is a body corporate manager, and powers of the committee have been delegated to the manager, a reference in this section to a resolution of the committee extends to a decision of the manager made under the delegated powers, other than a decision to pay an account—
(a) of a routine, administrative nature; or
(b) on the basis of an authorisation given by the body corporate in a general meeting.

In the supporting grounds, the applicant states that –

Since the appointment of McKinnon Body Corporate Administration Pty Ltd as body corporate manager in May 2001, it has been observed that minutes of resolutions of the committee passed have not been sent to use within 21 days of the resolutions being passed.

In evidence of this allegation, the applicant states that –

On 21 May 2002, we received in an envelope from McKinnon Body Corporate Administration copies of the following resolutions passed:

a)	5 February 2002 Flying minute
b)	16 April 2002 Flying minute
c)	20 April 2002 Committee meeting
d)	8 May 2002 Flying minute
e)	20 May 2002 Flying minute.

A submission by committee member, Lex Doust, states that the applicant is associated with the previous body corporate manager, Barard Management Pty Ltd, and that –

It is obvious that Richard and Barbara Holmes have endeavoured to make Bev’s life a misery through intimidation and unreasonable demands and because of their knowledge of body corporate matters its relatively easy for them to do this.

This committee member is supportive of the position of the body corporate manager.

The secretary / body corporate manager, Beverly McKinnon has responded in a submission denies the allegation, and states that section 35(2) has been complied with. The secretary states –

Item 6 in the applicant’s application states that copies of minutes and resolutions were forwarded to the owner of lot 11 on 21 May 2002. I would advise the commissioner that these were duplicate copies, the originals having been previously forwarded.

The secretary concludes –

As body corporate manager ... I am mindful of my duties in respect of the Act and the regulations and in particular since the owner of lot 11 placed a motion on the agenda of the EGM held on 26 August 2001.

In response to the secretary’s quoted statement that original copies had previously been sent to the applicant, I requested “copies of original correspondence under cover of which the copies of minutes and resolutions were previously forwarded to the applicant”.

The secretary responded –

I would advise that I am unable to provide you with the information required as Minutes were forwarded to owners without covering letters following the resolutions of the committee. My main book has entries for Kellys Beach on 12 February 2002, 12 April, 2002, and 21 May 2002. ...

As previously stated I am very mindful of Mr Richard Holmes continual overseeing of my performance and make every attempt to ensure that I comply with the regulations at all times. ...

The manager denies the allegation and states that the section has been complied with, but can provide no supporting evidence of this. Conversely, if the manager’s statement is accurate and copies of relevant minutes were in fact sent in compliance with section 35(2) as the manager alleges, then the applicant is denying having received copies of those minutes, and is misrepresenting the truth of this matter to this office. In support of this possibility, the applicant is the previous manager, whose services to this body corporate were not continued. In the circumstances, I am simply unable to determine the truth or otherwise of the applicant’s allegation, and given this, propose to dismiss the application.

I am certain all parties are aware of the requirement of section 35(2) and consider that if in fact the secretary / manager were failing to comply with this section, then that it would be a foolish action of no benefit in that it would simply give the applicant grounds for complaint. n