Quartermaine Park [2002] QBCCMCmr 696 (29 November 2002)

RA MeekREFERENCE: 0468-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21690
Name of Scheme:	Quartermaine Park
Address of Scheme:	170 - 177 Latimers Crossing Road ADVANCETOWN QLD 4211

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

Veronica Sive, the co-owner of lot 3



RA MeekI hereby order that the general meeting of the body corporate of Quartermaine Park purported to have been held at 11:00 am on Friday 19 July 2002, and all resolutions purportedly carried at that meeting, are invalid and of no effect.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0468-2002

“Quartermaine Park” CTS 21690

The applicant, Veronica Sive, the co-owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

1. Dissolve last body corporate meeting;

2. Seek to elect secretary and correct body corporate management methods;

3. Seek to have mediator to assist in resolving issues and management protocols of body corporate;

4. Mediator to resolve ongoing financial and general body corporate management issues between 4 lots (owners).

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)).

Interim order:

On 28 October, 2002, I made the following interim order -

RA MeekI hereby order that the application by Veronica Sive, the co-owner of lot 3, for an interim order that I invalidate a committee meeting as the applicant was not advised in writing of the meeting or items on agenda including voting for body corporate secretary, is dismissed.

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In the interim order, I stated in my reasons as follows -

The interim order sought is that I invalidate a committee meeting. No copy of the committee minutes in question were provided as part of the application. I am confused by reference to a committee meeting in the requested interim order, and to a body corporate meeting in the requested final order. Are these meetings one and the same, or are different meetings being referred to.

As part of my investigation of this dispute which I am required to undertake, I sought a copy of relevant minutes.

A person by the name of Mr Ford, who the applicant alleges is the body corporate secretary, was contacted regarding a copy of the minutes. He apparently had attended this office previous to this request, and spoke to a member of the information service “showing him the minutes along with other documents”. The officer did not take a copy of those minutes from Mr Ford, and presumably was unaware that the minutes were required as part of an application. Though Mr Ford was unhappy at being again requested for a copy of the minutes, he indicated that he would “write it out again” and send it by mail. To date, a copy of the minutes have not been received from Mr Ford.

On 1 October, this office was advised by the applicant that she had not received any minutes and therefore was not aware of any minutes to the meeting under discussion.

On 8 October, this office wrote to the applicant in the following terms, quote -

Your application seeks, in part, to invalidate this meeting. An adjudicator cannot appropriately consider the validity of a meeting without a notice or minutes of that meeting, and with scant details regarding the circumstances leading up to the meeting and what occurred at the meeting. We have received no submission from the other owners in this scheme, which may otherwise shed light on the situation.

As you may be aware, our Office originally attempted to obtain a copy of the relevant minutes directly from Mr Ford. In our communications, it seemed apparent that Mr Ford did have minutes for the meeting, however we had difficulty in obtaining a copy from him. Consequently, as the obligation of providing information relevant to the application rests with the applicant, we referred our request for the minutes to you.

If Mr Ford has not compiled minutes of the meeting, you are asked to provide a clear, detailed statement of your recollections of what occurred at the meeting. Furthermore, you should outline the relevant circumstances leading up to the meeting, for example at what time and by what means were you advised of the meeting. Such a statement cannot carry the same weight as formal minutes, however it may enable the Adjudicator to progress that matter. ...

To date, the applicant has not responded to the requirements of this letter. I am satisfied that it is within the applicant’s ability to so respond for the reason that the co-owner of her lot did attend the meeting. Given this, then the applicant should have obtained from her co-owner a detailed statement of both the circumstances leading up to the meeting being held, and further what business was transacted at the meeting, as per his recollections. As the party making the application, the applicant is required to provide evidence of the matters alleged.

I am unable to consider the merits of an application to invalidate a meeting, without sufficient details concerning that meeting. Further I consider it unreasonable that I be expected that I do so. For this reason, I now intend to dismiss this application for an interim order.

Following the interim order, I intend to have administrative officers again write to the applicant, and also to Mr Ford, requesting in the case of the applicant, a statement of her co-owner who attended the meeting, providing details of the meeting, and in the case of Mr Ford, a copy of the minutes, which he, if he was elected secretary as the applicant alleges, should have prepared following the meeting.

The final order to this application will depend on the outcome of these several requests. Should I receive no reply, or no satisfactory reply from the applicant, I intend to dismiss the application without further investigation. Should I receive a satisfactory reply from the applicant, but not the body corporate, the I will rely on the information provided by the applicant in the absence of any evidence to the contrary. This may result in invalidation of the meeting as sought in the application. If a receive satisfactory responses from both parties, I will further investigate this dispute from that point.

Application and submissions:

In the supporting grounds, the applicant states relevantly that –

The final problem occurred when the Olsen and Ford owners, simply called a meeting without informing all parties in writing, no agenda, no notification, and at 11.00 am on Friday July 2002. Without a proper election Reg Ford became the body corporate secretary.

Jorge Scanzi attended the meeting by default. He was verbally advised a meeting was to take place by Shaun Keenan of Energex ... to discuss the power line issue and therefore was in attendance. This meeting became the annual body corporate meeting.

I would like that meeting invalidated and mediation sought with the Olson and Ford owners as they are operating without fair and equal involvement of all property owners. ...

Subsequent to the making of the interim order, this office wrote to both the applicant and to the secretary, Reg Ford. The applicant was requested to provide details of the disputed meeting, and the secretary was requested to provide a copy of the minutes of the disputed meeting. This correspondence was sent to both parties on 31 October 2002 and requested compliance within 14 days. To date, no reply has been received from the Secretary, Reg Ford. The applicant has replied in the following terms –

1. Larry and Maureen Olsen wished to relocate an Energex service line.

2. Energex offered some suggestions.

3. The one option had a negative impact on my property – realignment included relocating line over the driveway.

4. Numerous discussions where (sic) held to attempt to find a solution.

5. The other options required payment to Energex by the Olsons, therefore they did not wish to proceed.

6. We did not wish to loose any more of our palm trees (which have previously been cut down due to proximity of the power lines overhead) and did not want the line over the driveway.

7. Ultimately a meeting was called verbally – advising all parties it was to discuss the realignment of the power line.

8. Shaun Keenan of Energex was to attend ...

9. The meeting commenced. This issues of the power line were discussed.

10. They decided need to take minutes. There was no Secretary as the previous owner of the Olsen’s property had been the formally appointed Secretary.

11. Larry Olsen simply said he nominated Reg Ford.

12. Reg Ford simply said OK he would be the body corporate secretary.

13. Jorge Scanzi was not even given a chance to talk.

14. The Energex issue was resolved – they simply raised the line with no negative impact to any of the parties.

15. They then decided to discuss the other body corporate issues including roadway, fencing etc.

16. No agenda was supplied prior to the meeting.

17. No minutes have been supplied subsequently.

The applicant further states that “we don’t have an objection to Reg Ford taking on the role of Secretary, what we object to is the fact that we are not informed in writing on an equal and fair basis. Reg Ford can remain the secretary. We would simply like the body corporate to comply with requirements and advise in writing of meetings, supply an agenda and minutes of the meeting”.

Determination:

As I pre-empted in my interim order, I intend rely on the information provided by the applicant in the absence of any evidence to the contrary. I intend to invalidate the meeting in question. I am satisfied that the meeting should be invalidated as basic and fundamental requirements in relation to the calling of a meeting of the body corporate have not been observed. These include, amongst other requirements –

1.	Written notice to owners (see section 42 of the standard module) including

• the agenda,

• proxy form and voting paper,

• full text of each motion to be considered,

• type of resolution required for each motion

2.	Twenty-one (21) days written notice of the meeting to all owners (section 43).

The applicant’s statement clearly states that there was no written notice of the meeting, and that body corporate matters were discussed. I conclude that, at best, the meeting might be considered a talk fest between certain owners. However no decision taken or made at the meeting will be binding on any owner. If any decision taken at the meeting has been implemented, it will need to be ratified by the body corporate at a properly convened further general meeting.

In addition to invalidation of the meeting, the applicant has sought that I order in terms as follows-

• Seek to elect secretary and correct body corporate management methods;

• Seek to have mediator to assist in resolving issues and management protocols of body corporate;

• Mediator to resolve ongoing financial and general body corporate management issues between 4 lots (owners).

The election of the secretary, and a committee, is a matter for a properly convened general meeting of the body corporate. It is the usual role of the secretary to convene meetings. Whilst adjudicators do make orders appointing an administrator to convene a general meeting of the body corporate and allow it to proceed on a proper legal basis, this application has not been presented on this basis. In particular, the applicant would be required to specifically request such an order, show circumstances why such an order should be made, and specifically nominate a person (often a body corporate manager) to be appointed. The applicant might consider making of future application along this line if she considers such an application necessary or appropriate.

As for the appointment of a mediator to assist in resolving issues and management protocols of the body corporate and ongoing financial and general body corporate management issues between 4 lots (owners), this is also a matter for the future in my view. It is difficult, if not impossible, to contemplate any form of mediation when certain parties to a dispute choose not to communicate with the office seeking to administer the dispute resolution process.

In the context of a application for dispute resolution having been made, this office might elect as the appropriate case management recommendation, mediation. However, this form of mediation is voluntary and is presently undertaken by the Department of Justice Community Justice Program. The mediators have limited, if any, knowledge of the legislation, so I consider that it is unlikely that a mediator so appointed would be able to achieve the objectives set out by the applicant.

In the case where there is limited knowledge amongst owners of the requirements of the legislation, it might be appropriate for owners to consider the appointment of a professional body corporate manager. Such managers are expected to be proficient in the legislation, though I acknowledge that the industry is not regulated, and the level of skills may vary considerably from manager to manager.
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