Mountainview [2003] QBCCMCmr 18 (10 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0457-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20989
Name of Scheme:	Mountainview
Address of Scheme:	176 Palm Meadows Drive CARRARA QLD 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mark Gerrard Gain, the co-owner of lot 1

I hereby order that the application by Mark Gerrard Gain, the co-owner of lot 1, for an order to declare motion 9 on the agenda defeated as it was passed in contravention of Section 57(1) and (3) of the Body Corporate and Community Management (Standard Module) Regulation at the AGM held on 30th June 2003, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0457-2003

"Mountainview" CTS 20989

The applicant, Mark Gerrard Gain, the co-owner of lot 1, has sought an order of the adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

An order to declare motion 9 on the agenda defeated as it was passed in contravention of Section 57(1) and (3) of the Body Corporate and Community Management (Standard Module) Regulation at the AGM held on 30^th June 2003 ...

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

(c) a claimed or anticipated contractual matter about-

(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)).

The order sought by the applicant relates to a previous order made by me in relation to the consideration of several motions at a general meeting of the body corporate. That order, dated 27 June 2003, provides that –

I hereby order that motion 8 on the agenda of the AGM of the body corporate of Mountainview to be held on Monday 30 June 2003, is invalid and of no effect.

I further order that at the commencement of the meeting, the chairperson shall make an announcement to the effect that motions 9, 10, 11 and 12 are to be determined by special resolution, and not ordinary resolution as stated in the notice of meeting.

I further order that motions 9, 10, 11 and 12 are to be determined by special resolution, and not ordinary resolution as stated in the notice of meeting.

At the meeting, motion 9 was carried by special resolution by a vote of 31 in favour with 7 against. The applicant claims that the ordered change to the type of resolution required amounts to an amendment of the motion under section 57 of the standard module, thus requiring that all persons who were not present personally at the meeting but who would have had a right to vote, must be taken to have voted against the motion.

The applicant states that 9 owners were not so present and that this 9 should be added to the 7 "no" votes, so that the "no" vote on the motion was in fact 16. On this basis motion 9 would not have been carried as the requirements for a special resolution would not have been satisfied.

The chairperson apparently refused a request by the applicant that the order made by me constituted an amendment to the motion, and that the provisions of section 57 applied to the determination of the motion.

The applicant states –

The adjudicators order is clearly an amendment to the motion and as the required 21 days notice of the corrected agenda was not notified to all lot owners prior to the meeting, the application of counting the votes in accordance with section 57(3) should have applied.

This is not correct. The applicant is simply seeking to interpret the order which I made in order to achieve his own purposes; namely the invalidation of the motion. The motion in question was not amended at a general meeting as section 57 refers to. Rather, it was ordered that the motion be determined by special resolution rather than ordinary. This is not an amendment of a motion in terms of section 57. It is an order made by an adjudicator for the purposes of the resolution of the dispute. Had I intended the provisions of section 57 of the module to apply to the determination of the motion, I would have specified this in the order. I did not intend the provisions of section 57 to apply to the determination of the motion in question.

Orders made should be interpreted according to their actual terms, and not subject to the application of any other legislative provision which might affect their operation. To require this would require an adjudicator to consider the operation of the order in the context of all other legislative provision, and may result in unintended consequences.

The motion was correctly determined and is valid, and this application is dismissed.