Beach Chalets [2003] QBCCMCmr 388 (18 February 2003)

Last Updated: 7 September 2007

C G YOUNGREFERENCE: 0090-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29375
Name of Scheme:	Beach Chalets
Address of Scheme:	1 Tingira Crescent SUNRISE BEACH QLD 4567

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

Donna Patricia ROSS-TEIGAN, as a co-owner of Lot 6,



C G YOUNGI hereby order that Motions 5 and 6 of the agenda for the extraordinary general meeting to be held on 26 February 2003, concerning the upgrading of the power supply and the ratification of a void resolution for the installation of a pool heater respectively, are invalid and on the authority of this order the chairperson at the meeting must rule both motions out of order.

I further order that the secretary, or in her absence the chairperson, is to oversee the service of a copy of this order and the accompanying reasons, on all owners. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0090-2003

"Beach Chalets" CTS 29375

The applicant, Donna Ross-Teigan of Lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"To have Motions 5 & 6 taken off the agenda for the EGM to be held on 26 Feb 2003, + scheduled for a meeting after the dispute Ref No. 746-2002 Beach Chalets has been resolved."

The applicant has also made application for an interim order in the same terms as the final order set out above.


JURISDICTION:

This is a dispute between an owner (the applicant Donna Ross-Teigan of Lot 6) and the body corporate (the respondent) concerning the validity of two motions included on the agenda of a forthcoming meeting. This is a matter that comes within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

While section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance because: the facts of the matter have been canvassed in a preceding application in the matter, Application No. 746-2002, and the appropriate parties have had the opportunity to be heard; the facts are relatively simple and clear and directly follow upon the previous application dispute and determination; sufficient information is available to determine the matter; and a prompt resolution of the dispute is in the interests of all parties.

Accordingly, this order will be the only order made in respect of the application – the parties, of course, retain their appeal rights against the order made and my dispensing with the making of an interim order does not diminish those rights.

General powers of an adjudicator in making an order:
Section 223(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 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

APPLICATION AND SUBMISSIONS:
Section 197 of the Act provides that an application may be referred by the Commissioner to an adjudicator although neither notice of the application has been supplied to the respondent nor submissions sought, because of the urgency or nature of the circumstances. Under delegated authority of the Commissioner, I have determined that, because of both the urgency of the matter (the imminence of the relevant meeting) and because the issues relating to the dispute have already been canvassed and determined in my Order 746-2002 for a preceding application in the matter, this course is appropriate and submissions are not necessary to determine the application.

In my "Statement of Adjudicator’s Reasons for Decision" to Order 746-2002, I said –

Since the receipt of this application, the applicant has lodged a further application, Ref. No. 90-2003 on 12 February 2003, concerning the pool heater project. This new application refers to the extraordinary general meeting foreshadowed by Sound BCM (see comments in last paragraph under heading above), in particular to that motion for the ratification of the pool heater project now at a cost of $13,359, and a further motion for the upgrading of the power supply at a cost of up to $2,000.

Because both applications involve the same dispute, I intend to deal with the matter fully in these reasons and in my subsequent reasons to the later application, adopt those reasons appearing here but with an emphasis on those relevant to the latter application. This approach will avoid any confusion that may arise from dealing with the matters entirely separately.

Accordingly, I do not intend to repeat the facts of the matter in these reasons, but merely state that the extraordinary general meeting foreshadowed in that order has been convened for Thursday 26 February 2003 (3 days hence).

DETERMINATION:

All of the reasons set out in my "Statement of Adjudicator’s Reasons for Decision" to Order 746-2002, are adopted by reference – that is, those reasons should be read as being part of the reasons for this order.

I repeat the remarks in those reasons that a motion to ratify the engagement of a particular service provider chosen by the committee does not remedy the failure to comply with section 102 of the Accommodation Module regulation in allowing the body corporate in general meeting to select the service provider. What is necessary is for the alternative tenderers to be set out within the one motion, or a series of two or more motions containing the alternative tenderers.

Accordingly, I have declared Motion 6, which seeks to have owners ratify the engagement of Heat Pump Systems, to be invalid and that it not be put to the vote at the forthcoming meeting.

Motion 5, which Motion 6 is stated to be conditional upon, directly concerns the pool heater project and should not proceed as a stand-alone motion – it can be included as a following motion to the tenderer alternatives if and when the body corporate convenes a further meeting to consider the project.

In any case, Motion 5 is not a simple ratification of the committee’s decision, but includes additional costs for waterproofing costs associated with the electrical conduit work. The costing of the project has become very difficult to follow and I suggest that if the project is to be pursued, then the tender alternatives/motions should show total project costs so that owners can make an informative choice. I also repeat my remarks made to Order 746-2002 that unless there has been specific provision made in the sinking fund, then those funds should not be interfered with to fund the project but a special contribution be levied on owners.