Meerawa Close [2003] QBCCMCmr 10 (7 July 2003)

Number of Scheme:	19705
Name of Scheme:	Meerawa Close
Address of Scheme:	70 Ridgevale Drive, HELENSVALE QLD 4212

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Brenda Elizabeth Murray, the co-owner of lot 1

I hereby order that the purported decision of the body corporate committee made on 29 March 2003 that the contract for body corporate management with Brokken Keel not be renewed, was at all times void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0238-2003

"Meerawa Close" CTS 19705

The applicant, Brenda Elizabeth Murray, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the body corporate committee decision purportedly made on 29 March 2003 to not renew the contract for body corporate management was void.

Section 276(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 the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Since this application was lodged, a later application lodged by another member of the body corporate, application 0336-2003, has been determined. The orders made in that application have essentially overtaken this application. The orders made were as follows:

I hereby order that the body corporate shall not consider motions 2, 5 and 6 appearing on the agenda of the annual general meeting scheduled to proceed at 10.00am on 14 June 2003.

I further order that the body corporate may consider motions 1, 3 and 4 appearing on the agenda of the annual general meeting scheduled to proceed at 10.00am on 14 June 2003.

I further order that the committee elections listed at the annual general meeting scheduled to proceed at 10.00am on 14 June 2003 shall not be conducted.

I further order that the present committee, with the exception of Mrs Brenda Murray, who is ineligible to be an ordinary member of the committee under section 10(2)(a) of the Standard Module, shall continue to hold office until the further annual general meeting ordered below.

I further order that the secretary, Mr Ian Keel, shall not render any fee to the body corporate for his administrative services in calling the meeting scheduled for 14 June 2003.

I further order that the secretary shall call a further annual general meeting ("the meeting") of "Meerawa Close" within three (3) months of the date of this order for the purpose of -

I further order that within seven (7) days of the date of this order the secretary must give a copy of this order to each person whose name appears on the roll as the owner of a lot in the scheme ("lot owners").

I further order that the secretary must give at least fourteen (14) days written notice inviting owners to submit nominations for committee and to submit motions for inclusion on the agenda of the meeting.

I further order that motions already in the hands of the secretary may be included on the agenda of the meeting.

I further order that the meeting shall be otherwise called and held as an annual general meeting in accordance with the Act, particularly sections 42 and 45 of the Standard Module and all other provisions relating to meetings under Part 4 of the Standard Module.

I further order that the secretary must not give the notice of meeting to owners earlier than twenty-one (21) days from the date of this order.

I further order that the meeting shall be deemed to be the annual general meeting for 2003.

In my statement of reasons for decision in application 0336-2003, the following comments appear:

I note that Mr Keel’s substantive agreement expired on 31 March 2003. The applicant sought an order that the committee decision of 29 March 2003, which was that the body corporate management contract with Brokken Keel not be renewed, be enforced. I do not propose to make such an order. The engagement of a body corporate manager can only be approved by the body corporate in general meeting (section 87(1)(a)) and then only if the agreement has been forwarded to owners with the meeting material (section 87(1)(b)).) If the applicant was of the view that the committee was effectively terminating the agreement with Brokken Keel, then this too was misguided. The agreement with Brokken Keel & Co provided for continuance on a monthly basis after the expiration of the term of 10 years at a monthly administration fee proportional to the total administration fee for the period just ended (clause 11.1 of the agreement) but further provided that either party giving the other 30 days’ written notice to that effect would terminate the agreement. Just as the engagement of a body corporate manager must be approved by the body corporate in general meeting, so too the termination of the agreement can only be considered by the body corporate in general meeting (section 58 Standard Module).

It follows that the first of the committee decisions of 29 March 2003 cannot be allowed to stand. I have therefore ordered that the decision not to renew the body corporate management contract with Brokken Keel was at all times void. I have not made a similar order in respect of the second decision, because although that decision to authorise Strata and Body Corporate Services to collect all body corporate records was clearly intended to be dependent upon the first decision not to renew the contract with Brokken Keel, it was technically a stand-alone decision which was capable of being made by the committee, even though such a decision might now prove problematic for the committee, given my first order in this application, and my orders dated 13 June 2003. It was also a decision which would be unlikely to be implemented unless the first decision were also implemented, because it could effectively remove records from an entity which was still to all intents and purposes operating as the body corporate manager for the scheme. There is no material before me as to whether body corporate records were ever actually collected by Strata Body Corporate Services.

•	the consideration of motions included on the agenda of the meeting; and
•	the election of committee members by secret ballot

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Meerawa Close [2003] QBCCMCmr 10 (7 July 2003)