Paradise Heights [2002] QBCCMCmr 689 (25 November 2002)

RA MeekREFERENCE: 0673-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19948
Name of Scheme:	Paradise Heights
Address of Scheme:	15 Bridgeman Drive REEDY CREEK QLD 4228

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

Rhonda Eileen Reynell, the owner of lot 78



RA MeekI hereby order that the body corporate of Paradise Heights shall include on the agenda of its forthcoming AGM the four motions, together with the explanatory notes, proposed and submitted by the owner of lot 78, Rhonda Eileen Reynell as per her correspondence to the body corporate of 27 September 2002.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0673-2002

“Paradise Heights” CTS 19948

The applicant, Rhonda Eileen Reynell, the owner of lot 78, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That my motions be included in the 2002 AGM agenda.

The applicant also sought an interim order that “the AGM be put on hold until my application is finally determined”.

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)).

On reviewing this application this morning, I contacted BUGT Management to ascertain if the notice of AGM had been sent. I was advised by Melissa Geraghty that the notice had not been sent, but that it would need to be sent either Tuesday or Wednesday of this week given that the date for the AGM had been set for 19 December 2002. I verbally instructed Ms Geraghty that the notice was not to be sent until such time as this order was made. I advised that I would be making the order today, and would have it faxed to BUGT Management this afternoon.

For the reason that the notice of AGM is about to be sent, I intend to deal with both the requested interim and final orders in this order. My decision will be my final order in respect of the application, and any party aggrieved by my order should consider an appeal of this order.

The applicant includes as part of her application –

1. Copy of letter received from BUGT dated 11/10/02;

2. Copy of my motions for inclusion in the agenda;

3. Copy of my email dated 22/10/02 in response to letter of 11/10/02;

4. Copy of notice of committee meeting on 23/10/02.

Document 1 advises that “as your correspondence was received on 7 October 2002 which was after the closing date of 30 September 2002 for receipt of motions, we are unable to place same on the agenda. However we will refer your correspondence to the body corporate committee”.

The applicant had sought the inclusion of 4 motions on the agenda of the AGM for 2002, namely –

1. That there be no increase over and above that of the CPI ... to the budget, especially now that individual owners are responsible for such things as painting their own lots and termite inspection.

2. That the body corporate committee rescind its decision not to have the tiles to all units and garages pressure cleaned by the painting contractor.

3. In the event that my motion 2 is unsuccessful then the roofs and garages of at least those units in close proximity to the surrounding bush land and offending gum trees be pressure cleaned.

4. That a street light be installed for the personal safety of persons alighting from or returning to their cars parked at end of the last cul-de-sac, between unit 76 and 77.

In her email of 22 October 2002, the applicant expressed “astonishment that (BUGT) letter box had not been cleared for over a week as I had hand delivered my correspondence on Sunday 29 September”.

The body corporate committee met on Wednesday 23 October 2002 to consider matters including the date and motions for the AGM.

It is not disputed that the closing date for receipt of motions was 30 September 2002. Neither party has provided me with a copy of the notice inviting submission of motions for inclusion on the agenda of the AGM. I did however request a copy, and have been provided with the same.

The notice does state:

Important note:

Nominations must reach this office no later than 30^th September 2002.

Owners wishing to submit a motion for inclusion on the Agenda of the AGM must forward a Notice of the Motion to reach our office no later than 30^th September 2002. Any explanatory notes must be no more than 100 words.

I note that the notice is on BUGT Management letterhead which provides both the post office box address and the street address. I note there is no stipulation in the notice that any nominations / proposed motions should be sent to one particular address.

The body corporate manager has responded on behalf of the committee. That submission states in part –

The applicant alleges that the motions were dropped into our street address mail box on 29 September 2002. We ask that the adjudicator note that our office does clear our street box on a daily basis. ... our office is in a strata titled building and there may be the possibility that the applicant dropped her motions in the “body corporate” mail box rather than our mail box. The key for which is with the chairman of the body corporate.

The registered address for service of notices on Paradise Heights CTS 19948 is care of PO Box 7674 GCMC, 9726. This is the address as registered with the Department of Natural Resources.

On the specific issue of the address for forwarding of notices, I am of the view that the body corporate cannot insist on the use of the PO Box address, when its notice given both this address and the street address. If the body corporate wants to insist on the use of the PO Box address, it should have specified this address as the return address, and as well, deleted its street address so as to avoid an confusion which might have arisen.

The body corporate manager states that her office clears the street box on a daily basis. The body corporate manager further states that “there may be the possibility that the applicant dropped her motions in the “body corporate” mail box rather than our mail box. The key for which is with the chairman of the body corporate”. Surely, this is a matter within the manager’s ability to know. It is not disputed that the applicant’s motions were received by the body corporate somehow. If the motions went to the street address specified in the notice, then presumably the manager would have received it on Monday 30^th when that office cleared the “street box”. Alternatively, if the requisition was delivered to the manager by the chairperson, then this would point to what the manager was suggesting; that it may have been put in the body corporate “street address”. I conclude the lack of certainty by the body corporate on this aspect somewhat difficult to understand.

Moreover, I am of the view that given that this was the AGM, the body corporate should have exercised a greater level of diligence in the receipt of mail around this time, particularly given the relevance of the 30 September date. In the circumstances, I am not prepared to allow the body corporate to deny receipt on the basis of a technicality. I suggest that immediately after 30 September, the body corporate committee should have checked all possible receipt points, including the body corporate street address. The fact that the chairperson holds the key to this address is not an excuse. The chairperson is a member of the committee.

In any event, there is no doubt that the proposed motions were in the possession of the manager by 7 October 2002 at the latest, and the body corporate committee did not propose to meet until 23 October 2002 to consider, amongst other things, motions for inclusion on the AGM notice. I am not advocating that late receipt should always be accepted. However, in the circumstances of this case, I consider that the technicality of the body corporate’s response is not appropriate. In particular, the body corporate has not established definitely that the proposed motions were received after the closing date. Secondly, the nature of the motions are not of themselves contentious in my view. Thirdly, there would be no inconvenience, cost or otherwise, to the body corporate in the acceptance of the motions. Finally, I am satisfied that the rights of any other owner would not be adversely affected by the acceptance of the motions.

I will reiterate that my view on this issue might have differed considerably had there been evidence to establish that the motions had not in fact been received by the closing date, or if the motions were of a contentious nature, or if the committee had already met to determine the contents of the agenda before the proposed motions came to the attention of the committee. None of these circumstances exist here.

In the submission, the body corporate manager states –

There are times when it would be a lot simpler to do what is practical rather than what is legislatively correct. However there is an obligation to ensure that the body corporate operates within the framework of the legislation.

I agree that a body corporate should act within the framework of the legislation. However, in the instant scenario, there is doubt as to receipt of the applicant’s correspondence – it is possible (and in fact the stated position of the applicant) that the correspondence was placed in the body corporate mail box before the closing date. Given this, the applicant, as an owner, must be given the benefit of the doubt regarding the issue. Accordingly, I intend to order that the applicant’s motions be included on the agenda of the forthcoming AGM.

The committee further submits that the motions were tabled and considered by the committee at its meeting held on 23 October 2002. The submission notes that “the committee had the ability, should they have wished to, to place the applicant’s motions on the agenda of the AGM as motions supported by themselves, however this was not a consideration as the motions were not in a form that could either be voted on or were inconsistent with (the Act) or did not have supporting quotes.”

I do not intend to enquire into the substance of the motions. If the committee / chairperson have a particular view of the validity or otherwise of the motions, then that is a matter for resolution at the AGM. I have been asked to determine whether the motions should have been included on the agenda of the AGM. In the particular circumstances of this application, I have included that the motions should have been. I have ordered accordingly. n