The Bay Apartments [2004] QBCCMCmr 169 (26 March 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Michael O’Dea, the co-owner of lot 14

I hereby order that the application by Michael O’Dea, the co-owner of lot 14 for several orders that

1. Orders requested:That the 6 voting papers rejected by the chair at the EGM be accepted and counted and that the count be amended to reflect the votes of these papers.
2. Alternatively that:The 6 voting papers rejected by the chair at the EGM be accepted from item 4 (the item that was being counted when the papers were rejected)
3. Alternatively that:The 6 voting papers rejected by the chair at the EGM be accepted as submitted before the recommencement of the meeting after the chair had adjourned the meeting. At the time of adjournment motion 4 was being tallied. This makes the request that the voting papers be valid and counted from motion 4 onwards when the meeting was restarted.
4. If orders 1, 2, 3 above rejected, then the order below is requested:That the EGM declared invalid on the grounds that the date had passed for the EGM to be held on the adjudicators orders which was made on the 3^rd June 2003 and stated that the EGM had to be held no later than 3 months from the 3^rd June 2003 bringing it to final date of 3^rd September 2003, making it outside the adjudicators orders by 1 month and 7 days.

These orders are requested aside from above orders:

5. That a penalty be levied to Gribbins Realty (Body Corporate Group) and Linda Payne (Body Corporate Manager for acting outside the power vested by chairing the meeting. These was unconscionable conduct resulting in undue influence being used to stop the

voting papers being allowed in ...

6. That a penalty be levied to Linda Payne, the body corporate manager for not acting impartial, honestly, fairly and professionally whilst carrying out her duties as representative of the Body Corporate Group.
7. That the single letter from John Gribbins, dated 19^th September be ruled as deliberately misleading on the grounds that paragraph 5 which starts with the work "working" infers that $84.00 per unit is all that is required to satisfy payment for work that has been earmarked as needed in the EGM paper.
8. It should be ordered that complete clarification by John Gribbin Realty be made to all owners in the Bay Apartments, making it clear that the funds required to be paid by owners is between $3024.00 and $3864.00.
9. That motion 12, Agreement to special levy on the EGM of 10^th October be struck out as "out of order" on the grounds that the committee had submitted that the motion to be put to the owners of the Bay Apartments was to be levied as three distinct payments but when the papers came out it had been changed by R. Petherbridge (Chairperson) without consultation with committee members to show the special levy as a single payment.
10. It is argued that this should have been added as an extra motion and called it motion 13 and the original motion should have remained,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0685-2003

"The Bay Apartments" CTS 1592

The applicant, Michael O’Dea has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

(Note that the above numbering is not the applicant’s system of numbering. However, for ease of reference, I have varied the numbering, as the applicant’s references to numerous orders sought numbered 1 and 2 would cause confusion).

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)).

Interim order

The applicant had previously sought an interim order be granted stopping any act to further pursue any action in relation to any of the motions voted on at the EGM on the 10^th October 2003 until a decision by the Adjudicator is given and specifically that It is believed that the removal of the bicycle enclosure (motion 4) will be dismantled almost immediately, thus asking that this is an "urgent application" for a hold on work.

On 31 October, 2003, the following interim order was made, quote -

Subsequent to the making of the interim order, and clearly in light of such interim order, the applicant has amended the final orders sought by him in the following terms, quote –

The applicant actually requested that the terms of the interim order be "revisited" and be "placed on all 12 motions presented at the EGM. In respect of this request, the applicant was referred to his rights of appeal.

Whilst the applicant has requested that his original first three orders sought now be relegated to secondary orders, and that his original secondary order be accorded first priority, I nevertheless intend to deal with the orders in their original order, as I consider it convenient to do so.

Determination

Orders sought 1, 2 and 3

The applicant was correct to suspect as he did the "persuasive" nature of the material which I referred to in the reasons for the interim order. Given the District Court authority for the interpretation of section 51, I conclude that it is impossible for the applicant to succeed in any of the first three orders sought by him in the alternative. The delivery of 6 written votes (including 5 for other owners) by the applicant after the meeting had commenced clearly contravenes at least two requirements in section 51(2); namely that an owner give their voted to the secretary, either personally, by post or by facsimile, and further, that the vote be given to the secretary before the start of the meeting. I consider that the 6 written voting papers sought by the applicant to be included in the count of votes in respect of motions, are invalid and of no effect. I intend to dismiss the first three orders sought by the applicant for this reason.

Order sought 4

The applicant next seeks that the EGM be declared invalid on the grounds that the date had passed for the EGM to be held on the adjudicators orders which was made on the 3^rd June 2003 and stated that the EGM had to be held no later than 3 months from the 3^rd June 2003. The applicant calculates that the meeting ordered to be held was in fact held some 1 month and 7 days out of time.

I acknowledge that the EGM required to be held pursuant to my previous order was held out of time. The question is whether the entire meeting should now be invalidated for this reason.

The first consideration is that the failure to hold the meeting in the time period stipulated is an enforcement issue. This office does not act to enforce its orders in any way. Rather, the Act provides to owners or aggrieved persons mechanism for enforcement of orders made by adjudicators. (see Part 10 Enforcement of Adjudicator’s Orders, Ss. 286 to 288).

Notwithstanding this I am prepared to further consider the issue. The question arises: what will be achieved by invalidating the meeting for this reason. The applicant does not address this question. In my view, the effect on the body corporate will be a negative or adverse one. The body corporate has convened a meeting ordered by an earlier adjudication, however it did so belatedly. I conclude that it is in the interests of the body corporate that the meeting was held, rather than not held. The failure to comply with the time limitation imposed by me is in these specific circumstances, of no particular concern to me.

Now I intend to consider the reason for the delay. In a submission, the chairperson, Rolf Petherbridge has explained that –

The chairperson sent an email to the body corporate manager requesting that the contents of the email be included in the papers for the EGM in question. In part the email states –

The explanation provided by the chairperson to all owners for the delay in convening the meeting appear to me to be reasonable justification for such delay. I note that the applicant has not adduced any evidence to show than any owner objected to the delay in the convening of the meeting. As well, submissions were sought from all owners regarding the application and no owner has written stating that they objected to the delay in the convening of the meeting, or that it caused them to be disadvantaged or otherwise affected.

Finally, I turn to the actions of the applicant in regard to this aspect. At all times, in his grounds, the applicant seeks to evidence his actions in having the 6 voting papers accepted. He did not press the point regarding the meeting being out of time. I consider it clear that if the six voting papers tendered by the applicant had been accepted, the applicant would not be objecting to the timing of the meeting as he now does. It is clear that the applicant’s interest in the meeting was in having his six voting papers accepted. Once it was made reasonably clear to the applicant this would not happen due to the requirements of section 51, then the applicant’s tack changed considerably. It was at this time that the applicant sought to elevate the issue of delay to "our number one request". In my view the applicant’s motives are very transparent, and self serving. Upon realising that he would fail on his first line of argument, he then sought to change tack.

For the reasons I have set out, I refuse to order in terms as sought by the applicant that the meeting be invalidated for the reason that it was convened out of time.

Orders sought 5, 6, 7 and 8

Orders sought 5, 6, 7 and 8 seek penalties be imposed and other orders imposed against the body corporate manager, John Gribbins Realty and certain officers or employees thereof.

The first point to make is that this office has no power or jurisdiction to impose a "penalty". An adjudicator can make an order that certain action be undertaken, but cannot order the imposition of a penalty in respect of an alleged contravention of the legislation.

Secondly, the applicant is seeking orders be made against the appointed body corporate manager, and officers or employees of that firm. An adjudicator has power to make an order in respect of a dispute. Section 227 of the Act defines a dispute. No part of that definition including a reference to a dispute which may arise between an individual owner and a body corporate manager appointed for the scheme. Only a body corporate for a scheme may be in dispute with a body corporate manager (see section 227(1)(c)). I conclude that the orders sought by the applicant numbered 5, 6, 7 and 8 are beyond power of an adjudicator to make, and are dismissed for this reason.

However, in dismissing the application for orders sought 5, 6, 7 and 8 I will make the observation that the determination of these orders, if within jurisdiction, would have depended significantly on the credibility of the parties, and the veracity of their various allegations. The information presented by the applicant as to the events of the meeting differ markedly from the version of events provided in submissions by both the chairperson and the body corporate manager, Linda Payne. I consider that the applicant would have had some difficulty in my view in establishing the accuracy of many of his explanations of events at the meeting.

In my view, the applicant’s version lacks conviction, is not corroborated by others, tends to be self serving and fails to explain certain aspects (for example, the alleged taking of the voting papers by the applicant). The applicant simply does not refer to this aspect. Did it not occur? If it did occur, and at least two others have stated clearly that it did, why does the applicant not refer to the event. Is it that perhaps the event is somewhat hard to explain in a way consistent with the applicant’s version of events. Does it perhaps tend to show that the applicant might perhaps not have acted in an entirely reasonable manner during the meeting as he clearly sought to suggest in his material? The answers to these questions are known only by the parties, but my point is that in my view, the evidence opposing the application was more consistent and persuasive than that provided in it.

Orders sought 9 and 10

Finally the applicant has sought an order that motion 12 considered at the meeting be struck out as "out of order" on the grounds that the committee had submitted that the motion to be put to the owners was to be levied as three distinct payments but when the papers came out it had been changed by R. Petherbridge (Chairperson) without consultation with committee members to show the special levy as a single payment.

In support of this, the applicant has provided a document annexed Exhibit 3 which he suggests is proof of a committee determination to propose the motion contemplating the special as being levied in three equal payments on three different dates. However, I do not consider the document to be evidence of a committee resolution to this effect. I suggest that minutes of a committee meeting where this was resolved would evidence this, not an unidentified document containing a list of motions. There is no evidence on the fact of this document that the committee has adopted or resolved that these motions be proposed at the general meeting to be convened.

The chairperson has made a submission in response. He states –

The email, which went to all owners as part of the meeting notice and agenda, includes the following paragraph –

This explanation to all owners does more than simply explain that the motion is submitted by the chairperson as an owner and not by the committee; it also suggests a deadlock or impasse by the committee in this aspect. This is contrary to what the applicant has suggested. As I have already stated, the applicant has not evidenced to me that the committee did resolve to propose the motion in the manner he suggested.

In all the circumstances, I consider that there was no invalidity in the manner in which the motion was put to owners. Moreover, the motion was resolved in the affirmative by 10 votes in favour with one against. As I have already acknowledged in the interim order, even the six votes held by the applicant, assuming a "no" vote against motion 12, would not have defeated the motion. The body corporate in general meeting has determined by majority resolution to collect the levy in one amount, rather than 3. In the circumstances, I intend to dismiss the applicant’s application in respect of motion 12. I conclude the resolution taken in respect of motion 12 at the EGM held on 10 October, 2003 to be valid and enforceable.

I note that this determination has implications for the entitlement of owners to vote at the forthcoming AGM proposed for 31 March, 2004. I suggest that owners who have not yet paid the contribution required by motion 12 do so immediately in order to ensure their voting entitlements at the forthcoming AGM.

Number of Scheme:	1592
Name of Scheme:	The Bay Apartments
Address of Scheme:	43 The Strand NORTH WARD Q 4810

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Bay Apartments [2004] QBCCMCmr 169 (26 March 2004)