Gold Coast Central [2003] QBCCMCmr 60 (11 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0252-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16779
Name of Scheme:	Gold Coast Central
Address of Scheme:	Cnr Barney Street & Brighton Parade SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lewis Francis Felici as trustee, the owner of lot 21

I hereby order that the application for an order that money spent on security between May 2002 and January 2003 in the sum of $99133.45 should be put back into the body corporate administrative fund, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0252-2003

"Gold Coast Central" CTS 16779

The applicant, Lewis Francis Felici, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

The money spent between May 2002-January 2003 is $99133.45. This money should be put back into the body corporate administrative fund.

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)).

In the supporting grounds, the applicant stated that the amount involved was expended between 1 November 2001 and 31 October 2002. The applicant further stated that body corporate approval for security to be employed was not given until the annual general meeting held on 10 January 2003, therefore the earlier sum was spent without body corporate approval.

The body corporate committee and all owners were invited to respond to the application. Eleven owners responded, and all but one of those supported the application.

I have recently made orders in two other applications relating to this scheme. Those orders required that an extraordinary general meeting be held at which various outstanding matters, such as maintenance and repair of common property, insurance and the appointment of an administrator, are to be considered.

In my view, the subject matter of this application should also be considered by owners at that meeting. As I stated in the reasons accompanying the decision in applications 0753-2002 and 0456-2003, this scheme has had a troubled history. It is apparent that committee decisions were made under less than optimum conditions, and in most unusual circumstances, given the body corporate insurer’s decision to cancel the insurance cover. It is important that owners are given detailed reasons for the committee’s decisions over the past 15 months.

If the applicant wishes to have this matter further considered, then he should propose an appropriate motion for inclusion on the agenda of the ordered meeting, when invited to do so by the secretary. For the applicant’s information, I have set out below the orders made by me on 8 August 2003 in application 0456-2003:

I hereby order that, within 3 months of the date of this order, the body corporate shall call and hold an extraordinary general meeting at which the following matters shall be considered:

• The appointment of Clare Cauchi of Gold Coast Body Corporate Specialists as administrator of the scheme until such time as the body corporate obtains building, public liability and office bearers’ insurance
• The appointment of an onsite manager
• The consent of the body corporate to a new community management statement amending the existing community management statement in relation to certain exclusive use allocations and special privileges attaching to lot 3
• A programme for the maintenance and repair of common property
• Any other motions proposed by owners for consideration at the meeting provided that such motions are notified to the secretary within 21 days of the date of this order

I further order that a copy of this order and the accompanying statement of reasons, together with a notice inviting owners to submit motions for consideration at the meeting hereby ordered, shall be forwarded by the secretary to all owners within 7 days of the date of this order.