South Pacific Plaza [2003] QBCCMCmr 58 (8 August 2003)

Number of Scheme:	10922
Name of Scheme:	South Pacific Plaza
Address of Scheme:	157 Old Burleigh Road BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jan Taylor, a Co-owner of Lot 67

I hereby order that the application for interim and final orders concerning a notice inviting owners to make nominations for committee positions, and a notice inviting owners to submit motions, for consideration at the upcoming annual general meeting is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0511-2003

"South Pacific Plaza" CTS 10922

The Applicant, the Owner of Lot 67, has sought an adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act") concerning two notices distributed to lot owners by the Body Corporate Manager for "South Pacific Plaza". These notices relate to the upcoming annual general meeting of the Body Corporate. One of the notices invites lot owners to submit nominations for committee positions to be decided at the annual general meeting, and the other notice invites lot owners to submit motions for consideration by the body corporate at the annual general meeting. The Applicant objects to particular statements in the notices (described below), and considers that the notices should be ruled "out of order".

The Applicant has also sought the following interim orders in relation to the application, quote-

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.

The "South Pacific Plaza" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 15 July 1981. The scheme consists of 84 lots and common property. The community management statement for "South Pacific Plaza" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

This dispute resolution application was made on 31 July 2003.

On 7 August 2003, a staff member of this Office contacted the Applicant on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner"), and sought clarification of the parties to the application for the purpose of establishing whether the application properly described a "dispute" as defined by section 227 of the Act. Also on 7 August 2003, the Applicant amended the application to identify the Body Corporate for "South Pacific Plaza" as the other party to the dispute.

In accordance with section 247 of the Act, the Commissioner has referred the application to me to consider whether the circumstances of the application warrant an interim order.

At this time, I am primarily concerned with the application for an interim order. In any consideration of an application that seeks the making of an interim order, it is necessary to determine whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate.

The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances.

However, given that an interim order may be made ex parte (ie. without reference to, or submission from, the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of expeditious, and objective consideration, then the request for an interim order may be refused. It is a matter for an adjudicator to determine in respect of each application.

This application concerns the validity of preliminary steps in the convening the next annual general meeting of the Body Corporate, which I understand should be held between 1 September and 30 November 2003. If it is the case that preliminary steps in the convening of the annual general meeting are defective or unlawful, then in my view it is preferable for these matters to be addressed (as much as possible) prior to the Body Corporate incurring the full expense of convening and holding the annual general meeting. It is likely that the Body Corporate will suffer significant disruption and cost if it proceeds to hold its annual general meeting, and it is ultimately found that the meeting was invalid.

In addition, I consider that the issues raised by the Applicant are relatively straightforward, and can be assessed in the absence of a submission from the Body Corporate.

For these reasons, I consider that the nature and urgency of the circumstances of the application warrant the matter at least being considered for an interim order.

As mentioned previously, this application concerns a notice inviting owners to submit nominations for committee positions to be decided at the upcoming annual general meeting ("the notice inviting nominations") and a notice inviting owners to submit motions for consideration at the same meeting ("the notice inviting motions"). The Applicant objects to particular statements made in these notices (described below) on the basis that "there is nothing in the BCCM Act 1997 requiring that these clauses be included in papers for nominations and motions."

The Applicant objects to the following statement made in the notice inviting nominations, quote-

Strictly speaking, I do not consider that the above statement is entirely accurate. Section 13 of the Standard Module makes provision for how individuals are nominated for election as committee members. Of particular relevance in this instance is section 13(6)(c), which provides:

name."

Therefore, it seems to me that an owner nominating a non-owner for the position of Secretary or Treasurer is only obliged to identify the candidate’s "employer" if the candidate is nominated "because of the candidate’s duties as the employee of, or provider of services to, another person". If these circumstances do not apply, then there is no obligation for the nominator to provide the candidate’s employer’s details. Furthermore, even if the circumstances do apply, I note that there is no requirement under the provision for the employer’s address to be provided.

For the above reasons, I do agree that the statement complained of does not give a completely accurate summary of the requirements of section 13(6)(c). However, in my view, the Applicant has not presented arguments demonstrating that there are significant, adverse consequences for owners resulting from this statement sufficient to justify an order disrupting the process of preparing for the annual general meeting. In my opinion, the benefits to the Body Corporate in convening its annual general meeting within the time frames specified in the legislation outweigh the Applicant’s somewhat minor criticisms in the drafting of the notice inviting nominations.

Turning to the notice inviting motions, I note that the Applicant objects to the following statement, quote-

Again, I consider that this statement is partly incorrect. In accordance with section 104 of the Standard Module, lot owners must be presented with a least two quotations for proposals involving the carrying out of work, or the acquisition of personal property or services, if the cost of the proposal exceeds the relevant limit for major spending for the scheme. If the relevant motion is proposed by the committee, then the committee must obtain the quotations, and if the motion is proposed by an owner, then the owner must obtain the quotations (see sections 104(3) and (4)).

However, pursuant to the Schedule of the Standard Module, the relevant limit for major spending for a community titles scheme is the amount worked out by multiplying the number of lots included in the scheme by $200. Therefore, contrary to the statement in the notice inviting motions, owners are only be obliged to obtain and present two quotations for a proposal, if the cost of the proposal exceeds an amount worked out by multiplying the number of lots included in the scheme by $200 rather than $100 as specified above.

Again however, I have not been presented with arguments showing that there are significant, adverse consequences for owners resulting from this statement sufficient to justify an order disrupting the process of preparing for the annual general meeting. Again, in my opinion, the benefits to the Body Corporate in convening its annual general meeting within the time frames specified in the legislation outweigh this fairly minor criticism in the drafting of the notice inviting motions.

As outlined above, I agree that there are some inaccuracies in the documents presented with the application. However, I am not satisfied that the preparatory steps for arranging the annual general meeting should be disrupted on the basis of the supporting grounds to the application as presented to me, and I intend to dismiss the application. However, I would suggest that the Body Corporate Manager give consideration to the comments in this statement of reasons, and the current drafting of the two notices.

Notwithstanding the above, if following the annual general meeting an owner considers that they have suffered some particular detriment because of the notices, or that the notices have had an improper impact on the outcome of motions or committee elections, then the owner could consider making a further dispute resolution application regarding the issue. Such an application must be accompanied by full and proper grounds.

While this is a determination of the application for an interim order, for the same reasons it also determines the application for final orders. It is not intended to seek submissions regarding the application, or to make a further order.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

South Pacific Plaza [2003] QBCCMCmr 58 (8 August 2003)