Sunbird Villa [2002] QBCCMCmr 81 (15 February 2002)

C G YOUNGREFERENCE: 0092-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	966
Name of Scheme:	Sunbird Villa
Address of Scheme:	5 Little Reef Street PORT DOUGLAS QLD 4871

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

Graham Leslie DAVIES and Jennifer Edith DAVIES, as the co-owners of Lot 2,



C G YOUNGI hereby order that the body corporate must not implement or otherwise act upon the resolutions purported to have been passed at the meeting, whether committee meeting or general meeting, held in Brighton, Melbourne, on 31 October 2001, pending determination of this application by final order.2yn

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0092-2002

“Sunbird Villa” CMS 966

The applicant, Graham and Jennifer Davies of Lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Sunbird Villas has been without a registered Body Corporate Management since May 2001

And we need to establish a plan to be followed for the 3 Units. So far efforts have not been successful, with 2 owners making decisions and not notifying the 3^rd owner. We have enclosed information relating to the situation, which we are entitled to. SA meeting was held but was not valid.

The applicants have also sought the following interim order of an adjudicator, quote -

Declare meeting held on 31^st October 2001 invalid. New meeting to be called.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

Section 197(3) of the Act provides that an interim order may be made despite notice of the application, and an opportunity to make a submission, having been given to the respondent and other interested parties. That course is appropriate in this instance.

Section 193 of the Act provides that an application to void a committee or general meeting of the body corporate, must be made within 3 months of the date of the meeting. This application was not lodged until 12 February 2002, some 12 days over the 3 month limit. Section 193 (3)(b) provides that an adjudicator may waive the limit for good reason. As the limit has only been slightly exceeded in this instance, and the complaint concerns, in part, a proposal for dealing with the common property, I am of the opinion that good reason exists for the application to proceed to determination.

In support of the application, the applicant has submitted copies of the documentation relating to the meeting of 31 October 2001 (hereafter “the meeting”). The notice of meeting is headed “Notice of Committee Meeting” though the agenda includes matters that can only be dealt with by the body corporate in general meeting. The employment of a Body Corporate Manager, the agreement on an insurance policy between one valued at $1,346 and another for $1,010 (the minutes do not show which tender was accepted), setting of body corporate contributions, are all matters beyond the power of the committee to decide (see sections 87(1), 103(1) and 95(1) of the Standard Module regulations respectively).

If on the other hand the meeting was meant to be a general meeting, then the meeting is equally void if, as the applicant asserts, the date of the meeting was changed after he had made certain arrangements to attend in Melbourne, and the notice was far less than the 21 days required for a general meeting under the legislation (see section 43 of the Standard Module regulations).

The applicant has not submitted whether there was any voting paper in the proper form, and the minutes of the meeting suggest that there were no formal motions circulated. Though a resolution setting contributions shows in the minutes, the agenda does not show such a motion.

In the absence of any submission by the other two owners, and confirmation that the documents submitted by the applicant are in fact the true documents, then I shall not issue an order as sought by the applicant for the meeting to be voided, but shall issue an order for the body corporate not to implement the purported resolutions. After submissions have been received I shall make a final order in the matter.

I note that the meeting did not discuss the agenda item “Registration of Court Yard”, which I assume refers to the grant of exclusive use over an area of common property to an owner or owners, however I am concerned that such a serious matter involving the alienation of the common property should be approached in so casual a manner. Such a grant is permanent and adds considerably to the value of a lot, which diminishing the use of the common property to other owners. It requires absolute compliance with the legislative provisions, including procedural provisions, and requires proper consideration by all owners. While no such grant was attempted at the meeting, I am concerned that the matter may be tabled at a future meeting in the same fashion.

Submissions will now be sought from the other owners to determine what documents issued and what took place at the meeting. I note the body corporate had a Body Corporate Manager previously. With the owners all living interstate, it is difficult for meetings to be arranged and the affairs of the body corporate to be properly taken care of. Owners should seriously consider the re-engagement of professional assistance in this task.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2yn