Edgecliff [2002] QBCCMCmr 565 (9 September 2002)

RA MeekREFERENCE: 0129-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1608
Name of Scheme:	Edgecliff
Address of Scheme:	23A Cleveland Terraces TOWNSVILLE

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

Frederick Thomas McDonald, the owner of lot 13



RA MeekI hereby order that the application by Frederick Thomas McDonald, the owner of lot 13, for orders

1.	That the body corporate be requested to remove the Austar Pay TV System from Edgecliff units roof.
2.	That the body corporate be required to justify authorising expenditure at meeting held or a quorum was not met.
3.	That the number of people attending a meeting on 18/4/2002 does not match voting numbers on the minutes. Therefore the authorisation to connect Marina Views TV reception is not sufficiently legal. That the body corporate be requested to remove Marina Views link to Edgecliff TV reception;

is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0129-2002

“Edgecliff” CTS 1608

The applicant, Frederick Thomas McDonald, the owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the body corporate be requested to remove the Austar Pay TV System from Edgecliff units roof.

2. That the body corporate be required to justify authorising expenditure at meeting held or a quorum was not met.

3. That the number of people attending a meeting on 18/4/2002 does not match voting numbers on the minutes. Therefore the authorisation to connect Marina Views TV reception is not sufficiently legal. That the body corporate be requested to remove Marina Views link to Edgecliff TV reception.

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)).

It should be noted that on four separate occasions, this office sought clarification of the application. At one stage, the Commissioner had cause to state in a letter to the applicant –

I am of the view that the quantity of diverse material that now forms this application is such that it would be difficult for affected parties to understand, and to make a meaningful submission in response to your application. Further, if the matter is referred to an adjudicator for determination, I consider that it will be difficult for the adjudicator to establish precisely what orders you are seeking and the relevance of a number of attachments to the application. As a result, I am requesting you to complete a fresh application form.

A fresh application was subsequently provided by the applicant however I am not satisfied that it is much of an improvement on the original material.

The first two orders sought by the applicant appear to relate to the validity of aspects of meetings held by the body corporate in 2000. Section 193 of the Act provides –

193 Time limit on certain applications
(1) This section applies to an application for an order declaring void—
(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or
(b) a resolution of the committee or body corporate; or
(c) the election of an executive or other member of the committee.
(2) The application must be made within 3 months after—
(a) if subsection (1)(a) applies—the meeting; or
(b) if subsection (1)(b) applies—the meeting at which the resolution was passed or purported to be passed; or
(c) if subsection (1)(c) applies—the meeting at which the executive or other member was elected.
(3) However, if the making of the application does not comply with subsection (2)—
(a) the commissioner must deal with the application (including making a case management recommendation for the application) as if the making of the application complied with subsection (2); and
(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

The applicant has not addressed the requirements of this section. It is doubtful in my view whether the applicant is even aware of the section. At one point in the applicant’s material he states –

My guide to Corporate Management has been the 1980-88 Titles Act. When the 1997 Module was presented, I checked with two legal firms as to the useability of the old Act. They assured me that the information in the old Act was comparable with the 1997 module.

The 1997 legislation is now the applicable legislation. Whilst being consistent in many respects with the former legislation, it does introduces new concepts, including that contained in section 193.

The applicant has not satisfied me that there is good reason to waive the requirements of that section, and I decline to do so. I consider there would be serious questions of procedural fairness to other parties in now enquiring into the validity or otherwise of meetings held or motions carried in 2000. In coming to the conclusion that there is not good reason to waive the non-compliance with section 193, I have considered the contents of a submission made by the chairperson of the committee.

The third order sought by the applicant refers to the validity of motion 1 considered, and resolved by the body corporate at the EGM held on 18 April 2002. The motion was proposed as a special resolution by the committee. It proposed that the body corporate enter into a facility sharing agreement with another body corporate under section 118 of the Standard Module.

It is difficult to discern the applicant’s proposed basis for invalidation of the resolution. At one point the applicant states that “... it declared 9 for the motion and 1 against. Even this I think does not justify giving away our common property for the rest of our lives”. Subsequently, the applicant again refers to the “... 9 votes to give away common property”. The applicant then states “Please note that there are 5 postal votes and 4 from the meeting which I believe is not valid”. The applicant then states –

I ask the commissioner’s office make a judgement against Mr Peacock and request that the aerial system be disconnected. Further I ask that your office request that a postal vote be called of all members as well as a summary of the advantages and disadvantages which apply to common property. I further request that this process should not be carried out by the body corporate secretary as I believe her involvement would not support an objective outcome. ...

Essentially the applicant appears to be seeking a fresh vote on the issue, and that the motion be presented along with a summary of both advantages and disadvantages of the proposal.

I consider that the applicant has not presented any reasonable basis for invalidation of the motion. The motion required a special resolution, which was obtained. Further, the motion does not “give away common property”. Rather it proposes the sharing of utility infrastructure located on common property. No common property is being lost to the body corporate.

For the above reasons, I intend to dismiss this application. n