Holiday Village [2003] QBCCMCmr 40 (31 July 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by KBL Investments P/L, the Owner of lots 1, 2, 3, 4, 6, 10, 14, 18, 19 and 29

I hereby order that the application for an order that the extraordinary general meeting of the body corporate for Holiday Village CTS 11949 not be held on 31 July 2003, is dismissed.

I further order that the body corporate shall not consider motion 3 on the agenda of the scheduled meeting as that motion was at all times void.

I further order that the body corporate shall not implement or otherwise act upon such of the remaining motions as may be passed at the scheduled meeting, until this application is finally determined.

I further order that a copy of this order and the accompanying reasons shall be provided to all owners, either personally at the scheduled meeting, or by post within 14 days of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0508-2003

"Holiday Village" CTS 11949

The applicant, KBL Investments Pty Ltd, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:-

That the extraordinary general meeting of the body corporate for Holiday Village CTS 11949 not be held on 31 July 2003.

The applicant has also sought a final order as follows:-

That the notice for calling an extraordinary general meeting of the body corporate for Holiday Village CTS 11949 to be held on 31 July 2003 is void and that the general meeting not proceed.

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

(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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

This application was received on 29 July 2003, and was referred to me for an interim order on 30 July 2003. Section 247(3) of the Act provides that the application may be referred to an adjudicator for an interim order even though notice of the application has not been given or all persons entitled to make submissions about the application have not had an opportunity to make submissions. The meeting in respect of which the interim orders are sought is scheduled to be held at 8.00pm on 31 July 2003. Clearly there is insufficient time before that meeting to seek submissions from all owners, or even from the body corporate committee. It is not immediately apparent to me why the application has not been made in a more timely fashion, given that the notice of meeting is dated 6 July 2003, although an explanation may be forthcoming in later material.

Be that as it may, I note that motion 3 proposed for consideration at the scheduled meeting is designed to overturn a previous adjudicator’s order made in application 0054-2003. Section 289 of the Act provides that an aggrieved person may appeal to the District Court against an order of an adjudicator, but only on a question of law. There are two outstanding appeals to the District Court, purportedly lodged by the body corporate, in respect of orders made in applications 0785-2002 and 0054-2003. I was advised by the listing registrar, Mr Pat Gould, on 30 July 2003 that the appellant in these appeals had not filed an outline of argument and that the time within which the appellant might do so had been extended to 8 August 2003.

The Commissioner for Body Corporate and Community Management has no power to "suspend" adjudicators’ orders. Section 232(5) of the Act provides that once an application is referred to an adjudicator, the commissioner has no role in relation to the substance of the dispute or the outcome sought by the application. I therefore propose to order that the body corporate shall not consider motion 3 on the agenda of the scheduled meeting, as the motion was at all times void.

As for the meeting itself, adjudicators are generally loathe to prevent general meetings from proceeding, particularly when an order to that effect would be made in such close proximity to the time of the scheduled meeting that owners may be personally inconvenienced and financially disadvantaged, as could undoubtedly be the case here. I am not aware whether any owner in this scheme lives outside Brisbane or interstate, but if they do, then it is feasible that travel costs would be thrown away if those owners had made arrangements to be present at the meeting, and it was cancelled at the last minute.

However, in order to preserve the status quo until the matter can be fully investigated, which will include all owners being given the opportunity to make a submission, I intend to order that the body corporate shall not implement or otherwise act upon any motions (other than motion 3 with which I have already dealt) passed at the meeting until this application is finally determined.

I make the observation at this stage that the material presently available to me appears to support the applicant’s contention that Mr Howard has no authority to hold himself out as the secretary of the body corporate. The minutes of the adjourned extraordinary general meeting held on 18 June 2003 reveal that Lorraine Tynan was elected unopposed to the position of secretary on that date. Mr Howard is also not the chairperson of the committee, nor is he the original owner. The provisions of section 61 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) do not appear to have been met.

In addition, I note that Mr Howard has recently sold his lot to KBL Investments Pty Ltd, the applicant in this matter, with settlement having been effected on or before 25 July 2003, the date on which the transfer giving effect to the transaction was lodged for registration in the Titles Office. I note that Mr Howard was one of the owners requesting the extraordinary general meeting. It appears that the bare minimum of owners requested the meeting. I have not been provided with a copy of the notice requesting the meeting, but I shall require information as to the date of that notice, and the date of the contract of sale for lot 6, as that will also form part of my deliberation in the final order in relation to the validity of the notice.

This matter will now be investigated in accordance with the usual procedures of this office.

Number of Scheme:	11949
Name of Scheme:	Holiday Village
Address of Scheme:	18 Thorn Street KANGAROO POINT Q 4169

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Holiday Village [2003] QBCCMCmr 40 (31 July 2003)