Admiralty Towers [2004] QBCCMCmr 137 (12 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0711-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16440
Name of Scheme:	Admiralty Towers
Address of Scheme:	35 Howard Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Roger Dearing, the secretary of the body corporate

I hereby order that the application by Roger Dearing, the secretary of the body corporate, for an order that the following committee resolution passed 25 August 2003 – Paul Rogers proposed a resolution stating "that the committee is concerned at the disruptive and non-productive actions of the secretary which have resulted in significant disharmony on the committee and requests that he focus on fulfilling the role of secretary to the committee for which he was elected, or resign forthwith from the committee". be ruled invalid, minuted or noted as such in the body corporate records. Ruled that the committee cannot mandate a resignation from a committee member, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0711-2003

"Admiralty Towers" CTS 16440

The applicant, Roger Dearing, the secretary of the body corporate, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

That the following committee resolution passed 25 August 2003 –

Paul Rogers proposed a resolution stating "that the committee is concerned at the disruptive and non-productive actions of the secretary which have resulted in significant disharmony on the committee and requests that he focus on fulfilling the role of secretary to the committee for which he was elected, or resign forthwith from the committee".

be ruled invalid, minuted or noted as such in the body corporate records. Ruled that the committee cannot mandate a resignation from a committee member.

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)).

Observations

• It is clear that a level of friction or disputation exists between members of this committee, in particular the chairperson and secretary.
• The dispute in question is minor in my view, however I have not adopted the view that it is "frivolous, vexation, misconceived or lacking in substance" (see section 270 of the Act).
• The resources of this office are such as to not reasonably extend to the resolution of minor disputes of this nature. I consider that this dispute should have been finalised or resolved within the processes of the committee.
• In the above circumstances, I refuse to undertake an in depth consideration of the merits or otherwise of the application, but rather intend to deal with the application in a summary way.

Determination

I have been asked to determine the validity of the committee resolution in question.

It has been argued to me that as there was no attempt to "mandate" the resignation of the secretary. One member of the committee explains that –

My interpretation of the resolution was that it was quite simply a request that he stop wasting the committees time with issues that were either not relevant, or had been dealt with previously.... I am well aware (as I’m sure are the rest of the committee) that we lack the power to demand a resignation of a committee member.

I consider that there are two scenarios to be distinguished. The first is discussion by the members of the committee of an issue which is not concluded with the passing of a resolution. In such instance, there is no resolution the validity of which is able to be determined. The second is the determination of an issue by the passing of a resolution by the committee. I consider that in the first case, where no resolution is carried, then no determination would be appropriate. However, where the position of the committee is reduced to the terms of a resolution, which is carried, then I consider that a resolution exists, the validity of which is within the jurisdiction of an adjudicator to determine.

The resolution in question "requests" the resignation of the secretary from the committee unless he focus on fulfilling the role of secretary to the committee for which he was elected. I conclude that the resolution is not a mandate or directive to resign. Rather, I consider that the resolution is a request, as it states. I conclude that it is within a committee power or authority to "request" that certain action be taken, notwithstanding that a committee may not have power to specifically enforce that request. In the circumstances, for the reasons explained, I am not prepared to order in terms as sought by the applicant. I cannot construe the resolution as a "mandate" by the committee to resign, and accordingly must dismiss this application.

I do however conclude that the discussion on the issue should never have proceeded to a resolution. I consider that the issue might appropriately have been the subject of discussion within the committee, but that it should not have been reduced to the form of a resolution. The resolution does not achieve anything, except perhaps to further inflame tensions and divisions within the committee, which has clearly been the result given the making of this application.