Maria Creek Estate [2002] QBCCMCmr 658 (4 November 2002)

C G YOUNGREFERENCE: 0155-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade KURIMINE BEACH Q 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Peter Alfred George HABLETHWAITE, as a co-owner of Lot 3,

C G YOUNGI hereby order that in a committee comprising seven voting members, under the provisions of section 27(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 at least four members must be a signatory to a requisition addressed to the body corporate secretary to call a meeting of the body corporate committee. 2n


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0155-2002

“Maria Creek Estate” CTS 25253

The applicant, Peter Hablethwaite of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

That the notice to the Secretary dated 10.3.02 from the three committeemen of the Body Corp representing Lots 1, 4, 5 requesting a meeting be declared invalid.

JURISDICTION:
The determination of whether or not jurisdiction lies in regard to this application, is a difficult question, mainly because of the stringency of section 182 of the Act. This section sets out the combinations of parties which have standing to be parties to a dispute under the dispute resolution provisions of the Act.

The order sought concerns a notice dated 10 March 2002 signed by three committee members, Michael Tafalos, Ivan Andrijevic and Claude Marsh, addressed to the body corporate secretary requesting a committee meeting be called for 18 March. They cite sections 28(1) and 29(1) as the authority for their requisition. Neither of these sections under either the Act or the Body Corporate and Community Management (Standard Module) Regulation 1997 (“Standard Module”), provide such a right (the Standard Module regulations are those relevant for “Maria Creek Estate”).

However, section 27(2) of the Standard Module is the appropriate authority, in providing –

Who may call committee meetings.

27(2) The secretary or, in the secretary’s absence, the chairperson, must call a meeting if asked, in writing, to call the meeting by enough members of the committee to form a quorum at a meeting of the committee.

In the wording of the order, the applicant refers to the respondents as the three committeemen but then goes on to refer to them further as representing Lots 1, 4, 5. The dispute does not concern the three persons in their capacity as owners or occupier, or corporate owner nominee, as the case may be, but as committee members. However, I take the applicant’s representation reference as being for the purposes of identification only.

Also, at “Item 4-Status” on the application form, the applicant has written Secretary of the Body Corp as well as circling the term owner, as being his application status. I can understand the reason for this, however a body corporate secretary has no standing under section 182 of the Act to be a party to a dispute, and accordingly I also intend to regard that reference as being merely information.

Returning to the requirements of section 182 of the Act, there is no provision for either the committee or a committee member, whether executive or ordinary member, to be a party to a dispute. An application concerning the action of a number of committee members, and a decision by the secretary to reject the requisition, do not fit within the ambit of the section. I consider this outcome discloses the inappropriateness of the inflexibility of section 182 in determining what disputes may be dealt with under the Act, as, clearly, this is a type of dispute which an adjudicator should be able to determine. Committee persons who fully complied with section 27(2) of the Standard Module also would face the same difficulty in lodging an application against a recalcitrant secretary. Again the deficiencies of the section are evident.

It would be a simple matter, fully supported by the (deficiencies of the) legislation, for me to dismiss the application for want of jurisdiction.

However, in this instance I intend to proceed with the matter as one with the applicant seeking a declaratory order, in which case the other party, and their status, is irrelevant. Section 223(1) of the Act acknowledges declaratory orders. The basis on which I intend to proceed is that, as the requisition was not acted upon, the applicant as an owner is interested in a declaratory order as to the validity or invalidity of such a notice under the legislation. Additionally, the question in issue is a simple interpretation and application of the relative legislative provision.

General powers of an adjudicator in making an order:

Section 223(1) of the Act 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 194 of the Act, a copy of the application was served on the body corporate and each of the three committee persons who were signatories to the meeting requisition notice.

A submission was lodged by Claude Marsh, Carmel Andrijevic and Carmel Andrijevic for Tafalos. Carmel Andrijevic has no interest in this matter which concerns only Ivan Andrijevic as a committee member, and consequently I cannot accept her submission; however as Tafalos gave a written authority for Carmel Andrijevic to represent his interest, I can accept the submission (the same one) on that basis. In any case, the latter submission did not really address the issue put by the application.


DETERMINATION:
Putting aside that owners have questioned the validity of the meeting of 8 March 2002 (that is not in issue here), the minutes of that meeting show that seven members were elected to form the committee. All were voting members. Section 32 of the Standard Module provides that –

32(1) At a meeting of the committee a quorum is at least half the number of voting members of the committee.

Accordingly, a quorum is four members. 2n

Section 27(2) of the Standard Module (quoted previously) provides that a committee meeting requisition notice must be signed by enough members of the committee to form a quorum at a meeting of the committee. Therefore, for such a notice to be valid it would have had to have been signed by at least four members, not only three as it was. The notice was deficient and therefore invalid. My order declares that to be the law in respect of committees of seven voting members, such as the committee shown in the minutes for the meeting of 3 March 2002.