La Porte D'Or [2003] QBCCMCmr 357 (30 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0755-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4207

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

Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180



RA MeekI hereby order that the application by Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180, that the chairman be ordered to remove Motion 16 from the Agenda for the AGM to be held on December 18^th, 2002, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2002

"La Porte D'Or" CTS 12681

The applicants Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the chairman be ordered to remove Motion 16 from the Agenda for the AGM to be held on December 18^th, 2002. The motion is "that the body corporate instruct the lift maintenance contractor to remove the "key only access" to level 33 foyer".

The applicants also sought an interim order to the above effect, and on 12 December 2002, the requested interim order was dismissed.

Section 223(1) 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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In dismissing the application for an interim order, I stated –

In my opinion, it is not open to an adjudicator or order a chairperson to withdraw a motion simply because an owner opposes such motion. Moreover, a final order to this effect, after the motion has been considered and possibly carried, will be of no effect. In the circumstances, I suggest the appropriate orders for the applicants to seek are, following the motion being carried (if it in fact is), possibly an interim order that the motion / resolution not be implemented pending a final determination of the application, and a final order that the motion / resolution is invalid and of no effect. The basis on which the applicants would need to argue for invalidation of the resolution is that the decision taken by the body corporate in the administration, management and control of the common property is not reasonable and for the benefit of lot owners (see section 114 of the Act).

I suggest that pending the outcome of motion 16 when considered at the AGM, the applicants consider making a further application on the basis suggested above. Obviously, it would be for the applicants to evidence the basis on which the body corporate was considered not to be acting reasonably.

I have now been provided with a copy of the minutes of meeting, which indicate that motion 16 was defeated. In the circumstances, I propose to dismiss this application.

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