Meerawa Close [2003] QBCCMCmr 20 (14 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0337-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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 Shane Richard Sharpin, the co-owner of lot 18

I hereby order that the application by Shane Richard Sharpin, the co-owner of lot 18 for an order seeking to have a body corporate committee decision overturned with relation to approval for an enclosed carport / garage at unit 1, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0337-2003

"Meerawa Close" CTS 19705

The applicant, Shane Richard Sharpin, the co-owner of lot 18 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Seeking to have a body corporate committee decision overturned with relation to approval for an enclosed carport / garage at unit 1.

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 applicant also sought an interim order that no further works or applications continue or commence and that the property be returned to the state / condition at time of purchase. On 11 June, this application for an interim order was dismissed, with the following statement of reasons -

The applicant has not addressed the requirements of section 242 of the Act, quote –

242 Time limit on certain applications
(1) This section applies to an application for an order declaring void--
(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or
(b) a resolution of the committee or body corporate; or
(c) the election of an executive or other member of the committee.
(2) The application must be made within 3 months after--
(a) if subsection (1)(a) applies--the meeting; or
(b) if subsection (1)(b) applies--the meeting at which the resolution was passed or purported to be passed; or
(c) if subsection (1)(c) applies--the meeting at which the executive or other member was elected.
(3) However, if the making of the application does not comply with subsection (2)--
(a) the commissioner must deal with the application (including making a dispute resolution recommendation for the application) as if the making of the application complied with subsection (2); and
(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

The application was received by this office on 27 May 2003. The three months time period for the application would have elapsed on 21 March 2003. The application is over two months out of time. As I indicated, the applicant has not addressed the requirement of providing "good reason" why I should waive the requirements of the section. Nor, on the face of the application, do I consider that there is "good reason" why I should waive the non-compliance.

In the circumstances, I intend to dismiss the application for interim order. There is no aspect of urgency associated with this matter which requires the making of an interim order. This is evidenced by the fact that the applicant delayed in excess of 5 months before making his application.

I consider the applicant now has the onus of establishing "good reason" why the time limitations in section 242 should be waived. Once the applicant’s written explanation of this is received, the same will be submitted to affected parties for submissions in response. Following receipt of submissions, if any, I will consider the making of a final order. Should a statement of "good reason" for the non-compliance not be received from the applicant within two weeks of the date of this order, I intend to further consider this application with the view to dismissing it for the reason of failure to comply with the time limits in section 242.

To date, the applicant has failed to provide a statement of "good reason" for the non-compliance with the time limitations in section 242.

In addition, the body corporate has submitted that even after excluding the votes claimed by the applicant to be invalid, the committee vote on this issue was 5:1 in favour of the dispensation being granted. Those committee members "in favour" are said to be –

• Mrs L Gurr by her nominee Mr J Byrne;
• Mrs M Robertson;
• Mrs M Robertson, as proxy for Mr P Wilson;
• Mrs M Robertson as proxy for Ms C Crumlin;
• Mr O Crouch.

Nominees are not proxies. I therefore consider that the vote of Mrs L Gurr should be discounted. Further, a person may only exercise a proxy vote for one other person (section 69(4)) so Mrs Robertson’s second proxy vote is not valid. This nevertheless results in a 3:1 vote in favour of the proposal.

Given this prima facie outcome of the vote on the motion, and the failure of the applicant to provide a statement or any explanation in accordance with section 242 of the Act, I intend to dismiss this application.