Cannington Court Garden Villas [2002] QBCCMCmr 574 (17 September 2002)

RA MeekREFERENCE: 0251-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7132
Name of Scheme:	Cannington Court Garden Villas
Address of Scheme:	24 Cannington Place, HELENSVALE QLD 4212

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kyla Jane Hellings, the owner of lot 5

RA MeekI hereby order that upon receipt of the two pieces of information the body corporate committee is awaiting, the committee shall convene a committee meeting, at which the owner of lot 5, Kyla Jane Hellings and / or her solicitor, together with the other affected owners, shall be invited to attend.

I further order that subject to the right of the committee to determine the future course of action by vote, that all parties have input in determining an agreed course of action or strategy for the resolution of the issues currently in dispute between the parties.

I further order that such committee meeting shall be held within six (6) weeks of the date of this order.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0251-2002

“Cannington Court Garden Villas” CTS 7132

The applicant, Kyla Jane Hellings, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Seeking an order for the body corporate to carry out their duty to return Lot 5 to a structurally sound condition.

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)).

Given the circumstances which I will outline briefly, I do not consider it necessary to restate the grounds to this application, nor the body corporate response. From a reading of the material it became clear to me that a teleconference was required in order to clarify certain of the issues arising in consequence of the application. That teleconference was held on Monday 16 September 2002 and included the body corporate manager, Naomi Bender, and two members of the committee, the chairperson John Lillee and Peter Fryatt, together with the applicant and her solicitor, Glenn Mylne.

It became clear from the somewhat lengthy teleconference that the issues in dispute were more complex then the written material appeared to suggest, and that the actual current position of the parties was more complex. In particular, it became clear that the position of the applicant was in fact somewhat contrary to that stated in the application. Rather than seeking that the issue of repair be addressed immediately or urgently, the applicant’s position in fact appears to be that she is dissatisfied with the current approach of the body corporate to this issue, and seeking a greater and more expert level of investigation.

For its part, the body corporate appeared to be of the view that it was in a position to proceed with the consideration of certain motions at a general meeting which, if carried, would have led to rectification work being effected, but that this had been prevented through certain statements made at the meeting by the applicant’s solicitor, and that the relevant motions were not then considered.

Moreover, the whole issue is further complicated by the fact of the potential remedies or courses of action which might be available to the body corporate, including against the developer, the local authority, or even the body corporate insurer.

In consequence of the teleconference, it was suggested that what appeared to be required was that rather than being in dispute, at this stage the parties needed to be consulting in order to seek to obtain the best outcome for all concerned, including the applicant, other affected lot owners, and the body corporate representing all owners. I consider that it would be premature for the body corporate to be considering motions for rectification at this stage, particularly in view of the fact that the applicant was opposed to the level of the expert advice in respect of which the body corporate were proposing to proceed. As well, the body corporate were still awaiting two further pieces of information; namely further legal advice and a response from the developer, Villa World Limited.

In the circumstances, I indicated that the only order that I considered to be appropriate would be to order that upon receipt of the two pieces of information it was awaiting, the body corporate committee should convene a committee meeting, at which the applicant and / or her solicitor, together with the other affected owners (one of whom the solicitor represents), should be invited to attend. Whilst it is the committee members who will ultimately have the right to vote at that meeting, I suggest that the combined input of all parties in determining an agreed course of action or strategy would be beneficial to the resolution of the issues currently in dispute between the parties. I can only recommend this course of action to the parties, with the hope that some of the preliminary issues between them can be resolved, and a strategy agreed upon. I have ordered to this effect, and have imposed a six (6) week time frame on the holding of the proposed meeting.




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