Palm Springs Residences [2003] QBCCMCmr 204 (6 November 2003)

Last Updated: 17 May 2005

REFERENCE: 0208-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29467
Name of Scheme:	Palm Springs Residences
Address of Scheme:	1 Twenty First Avenue PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gregory James Carroll, the co-owner of lot 701

I hereby order that the application by Gregory James Carroll, the co-owner of lot 701 for orders - 1. The body corporate is to publish full and accurate minutes of the Palm Springs Residences AGM held on 27 September 2002. Specifically item 28 and 32 as per Annex A to this application; 2. The minutes of the committee meeting of the body corporate for Palm Springs Residences held on 17 February 2003 agenda item under "matters arising from previous minutes" item 12. "Amendment to the AGM minutes" be ruled void being contrary to BCCM (AM) Reg. 1997 Section 57(1), is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0208-2003

"Palm Springs Residences" CTS 29467

The applicant, Gregory James Carroll, the co-owner of lot 701 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

3. The body corporate is to publish full and accurate minutes of the Palm Springs Residences AGM held on 27 September 2002. Specifically item 28 and 32 as per Annex A to this application.
4. The minutes of the committee meeting of the body corporate for Palm Springs Residences held on 17 February 2003 agenda item under "matters arising from previous minutes" item 12. "Amendment to the AGM minutes" be ruled void being contrary to BCCM (AM) Reg. 1997 Section 57(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)).

This application concerns the requirements of the Section 59 of the standard module which provides that the body corporate must ensure that full and accurate minutes are taken of each general meeting. The applicant alleges that this did not occur in respect of the minutes of the AGM held on 29 September 2002, at least the recording of the minutes in respect of motions 28 and 32.

The first issue which arises for determination is whether the applicant has complied with certain technical time limits. Section 242 of the Act (formerly section 193) relevantly provides that in certain circumstances, applications must be commenced within 3 months of the relevant date. The section relates to applications to invalidate resolutions purportedly carried at meetings of the body corporate, or its committee. It imposes a requirement that applications must be commenced within 3 months of the relevant meeting. Where an application is made after this time, then it must be dealt with, and "an adjudicator to whom the application is referred ... may, for good reason, waive the non-compliance".

It is debatable whether the section applies to the current application, given that the application does not specifically seek to invalidate motions. The position is analogous however in that the application relates to proceedings at a meeting. Moreover, the applicant has submitted himself to the provisions of the section and requested exemption.

The meeting in question was held on 29 September 2002. The application is dated 24 March 2003, and was received by this office on 27 March. In his grounds the applicant states –

This matter has been ongoing since 29^th September 2002 and was not considered by the committee until the meeting of 17 February 2003, when the committee failed to comply with the requirement of the BCCM ...

Even if this explanation is accepted, one wonders why it took the applicant a further 5+ weeks to make his application. Surely one would have expected some urgency on the part of the applicant after the 17 February date.

In an appeal of a previous adjudicator’s order (Weeks v. Commissioner for Body Corporate), Judge Dodds of the District Court stated –

As to waiving compliance for good reason ... the objects of the Act, for instance section 5(a) and (h) mitigate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought.

Considering the criteria mentioned by Judge Dodd, I note that –

• The total length of the delay is almost six months, and even if the applicant’s explanation is accepted, there is nevertheless an unexplained delay of 5+ weeks;
• The applicant states that he was waiting for a committee response;
• I consider that the effect on others in consequence of the delay is relevant, particularly in circumstances where the applicant is now alleging a re-collection of the events at the meeting some six months ago, and where he has specifically referred to the issue of "recollection" in his reply, quote "Logic dictates that my recollection of the meeting, ... was more accurate on the second day after the meeting, and again on the seventeenth day following the meeting, than that of any member of the committee on the 17^th February, 2003 some 143 days after the meeting".

Submissions were sought from all owners regarding the application. Of some 49 lots, only two individual owners elected to respond; one supportive of the application, and one not. I suggest that the failure of a greater number of owners to respond is attributable to two possible factors –

• That owners simply don’t regard the issue as significant; and
• That when owners were invited to make submissions in April, the events of the meeting occurred in excess of 6 months previously.

I suggest this latter reason has significantly impacted on the ability of owners, who might have had an interest in the dispute, to respond.

I now turn to what Judge Dodd considers the most important criteria, namely whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. This appears to involve a merits assessment of the application; namely excepting the delay, whether the applicant would ordinarily have been entitled to the relief sought.

I do not intend to embark on a full merits assessment of the application, as in my view, this would defeat the intent of the relevant assessment required under section 242.

On the basis of the material, I conclude that the application is likely to be dismissed. I consider that the items raised by the applicant are relatively minor. The amendments sought to minutes, even if ordered, are not going to result in any change in the direction of this body corporate. The allegations relate to semantics, not real issues which will be affected. For example, in respect of motion 32, the applicant is seeking that the statement "The committee will discuss this matter at the next committee meeting" be struck from the minutes as he alleges that it was never made. The inclusion or excision of this statement will have negligible, if any impact on this body corporate. The statement is in my view a complete irrelevance. If the applicant’s objections related to the specific terms of a resolution carried then the position would be different, but they do not.

Secondly, I am satisfied that in respect of the minutes for motion 28, the committee have already conceded certain changes. The applicant appears not to be satisfied with this, and wants his position to prevail completely. This suggests to me that the committee has considered the applicant’s objections reasonably, and has altered its position to satisfy certain of the applicant’s concerns.

The final reason for believing that the application would be dismissed in any event is the question of proof. The body corporate submission and the submission of one owner both oppose in very clear terms the application. The owner’s statements go as far as to state –

... Mr Carroll’s recollections of the meeting are incorrect.

Given that what is in dispute is such a subjective matter, namely what was said or not said at a general meeting now over 12 months ago, I consider that I am not in a position to determine the validity or otherwise of the applicant’s allegations with any degree of certainty, particularly with there being such clear opposition to the applicant’s position.

Accordingly, this application is dismissed.