Holiday Village [2004] QBCCMCmr 18 (12 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0091-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

TAKE NOTICE that pursuant to an application made under the abovementioned Act by KBL Investments Pty Ltd, the owner of 8 lots in the scheme

I hereby order that the application by KBL Investments Pty Ltd, the owner of 8 lots in the scheme for the following orders, quote - 1. That the document entitled "Notice of EGM of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard be declared beyond the power of the committee (as appointed by order of the Adjudicator dated 9th October 2002) to issue. 2. That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate. 3. That final orders be made as sought in the Application dated 20th January 2003 by KBL Investments Pty Ltd, being application no. 54 of 2003, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0091-2003

"Holiday Village" CTS 11949

The applicant, KBL Investments Pty Ltd, the owner of 8 lots in the scheme has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Interim and final orders as follows:-

1.	That the document entitled "Notice of EGM of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard be declared beyond the power of the committee (as appointed by order of the Adjudicator dated 9th October 2002) to issue.
2.	That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate.
3.	That final orders be made as sought in the Application dated 20th January 2003 by KBL Investments Pty Ltd, being application no. 54 of 2003.

Question 11

1.

That the document entitled "Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared beyond the power of the "interim" holding committee, as appointed by order of the Adjudicator dated 9th October 2002 to issue.

2.

That it be declared that any resolution purportedly passed at any meeting held on 18th February 2003, or at other time pursuant to the document entitled Notice of Extraordinary General Meeting of the body corporate" bearing the date 27th January 2003 issued apparently by Jack Howard, be declared invalid and unenforceable, and not made during any lawfully constituted general meeting of the body corporate.

On 14 February 2003, the following interim order was made, quote –

I further order that all resolutions of the body corporate of Holiday Village purportedly carried at the EGM held on 18 February 2003, if any, shall not be implemented or otherwise acted upon until a final order to this application is made, this application is withdrawn, or this order is of no effect through operation of law.

All other requested interim orders were dismissed.

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)).

The resolution of this dispute was initially delayed by notification of an appeal of an order in a different application but involving the same scheme / parties (0054-2003), and by statements of "apprehension of bias" made by one party (Mr Jack Howard) against myself as the adjudicator. Mr Howard specifically requested the ruling on this order be deferred until the hearing of the appeal in respect of the other application.

To date, I am still unsure of the status of that appeal, but believe that it is not proceeding. It seems to me that the dispute the subject of the appeal, has been overtaken by subsequent events (and disputes) affecting this scheme. This is similarly the case with this application. It seems to me that the matters it relates too are now irrelevant in that they have been overtaken by subsequent events, and further disputes between the parties. I am informed by my fellow adjudicator, Mr C Young, that the dispute the subject of application 0588 of 2003 is now inching towards resolution, which might in turn bring some semblance of normal operation to this scheme.

In the above circumstances, I propose to now dismiss this application, as I consider that the issues raised in it are no longer affecting the parties, such that those issues need to be resolved by order of an adjudicator.