The Bay Apartments [2004] QBCCMCmr 22 (13 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0768-2003

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Alexander Marc PEACHEY, as the owner of Lot 9,

I hereby order that the application for the following orders – 1. That the EGM be declared invalid on the grounds that the date had passed for the EGM to be held on the adjudicator’s order which was made on the 3rd June 2003 And stated that the EGM had to be held no later than 3 months from the 3rd June 2003 bringing it to final date of 3rd September 2003, making it outside the adjudicators orders by 1 month and 7 days. 2. That the Adjudicator Order that a new EGM be called and for this new EGM to be completed within 3 months from the date given by the Adjudicator, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0768-2003

"The Bay Apartments" CTS 1592

The applicant, Alex Peachey of Lot 9, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

3. That the EGM be declared invalid on the grounds that the date had passed for the EGM to be held on the adjudicator’s order 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.

4. That the Adjudicator Order that a new EGM be called and for this new EGM to be completed within 3 months from the date given by the Adjudicator.

The applicant has also made application for the following interim orders of an adjudicator –

All motions from meeting held on 10^th October 2003 be stopped from being acted upon until decision by Adjudicator.

Specific Information for motions:

Motion 5 Stopped from Removal of Bicycle Enclosure; and

Motion 8, 9, Stopped from doing roofing, guttering work; and

Motion 10 Stopped from doing work to balconies; and

Motion 11 Stopped from doing work to Stairwells; and

Motion 12 Stopped from enforcing Levy Notice.


JURISDICTION:
This is a dispute between an owner (the applicant Pechey) and the body corporate (the respondent), concerning the validity of a meeting held under a previous adjudicator’s order but out of time. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227(1)(b), 228(1) and 276 of the Act).

While section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance for the reasons that I give under the following heading "Determination", and, in any case, the order is against the applicant in rejecting the orders sought, both interim and final.

Accordingly, this order will be the only order made in respect of the application. The parties, of course, retain their appeal rights against the order made, and my having dispensed with the making of an interim order does not diminish those rights.

General powers of an Adjudicator in making an order:
Section 276(1) 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the body corporate committee and all other owners with an invitation to respond to the matters of dispute raised in the application. No submission was made by the committee though a submission was made by the then chairperson, Rolf Petherbridge, based on his dealings with the matter in that capacity. A submission was also made by the Body Corporate Manager, Gribbin Realty (Linda Payne).


DETERMINATION:
"The Bay Apartments" was registered as a building units plan (now termed a building format plan) in 1974 and comprises 27 lots.

This application mirrors one lodged by a fellow owner, Michael O’Dea, in October 2003 soon after the extraordinary general meeting ("the EGM") held on 10 October 2003 which has given rise to common disputes over the removal of the bicycle enclosure, various building repairs and a special contribution levied to fund them.

Order 685-2003 was issued on 31 October 2003 by a fellow Adjudicator in respect to O’Dea’s application. O’Dea made application to prevent the implementation of any resolution made at the EGM, causing the Adjudicator to canvass all of the resolutions. Although the interim order made to his application, Interim Order 685-2003, only prevented the body corporate from implementing one resolution, namely that made in respect of Motion 5 for removal of the bicycle enclosure, the Adjudicator did make comment on all of the other resolutions.

Although that adjudicator did not specifically refer to the fact that the meeting was held some 5 weeks after the time period specified for a meeting to be held under a previous order, namely Order 742-2003, in consideration that it was the same adjudicator who made both orders then it may be taken that he was aware of the delay.

While the applicant is correct in referring to the delay, and it is a ground for an action against the body corporate for non-compliance with the order for which substantial fines apply (see section 288 of the Act), it does not automatically invalidate the meeting as he appears to believe. It would only be invalidated where the time period had some significance or there was some fundamental flaw in the convening or conduct of the meeting that resulted in a disadvantage to one or more owners. In that regard, the applicant has alleged that the Body Corporate Manager, Gribben Realty ("Gribben") did not comply with all of the terms in Order 742-2003 by not giving "notice to allow owners to submit motions for inclusion on the agenda of the meeting as set out as a requirement of Order of an Adjudicator, paragraph three of Order 3/6/03"

The order does not specify a notice but does require the "committee" to give a copy of this order to each person whose name appears on the roll as the owner of a lot included in the scheme and that owners have the right to submit to the appointed committee motions for inclusion on the agenda for the meeting. Both Gribben and Petherbridge assert that soon after receiving Order 742-2003 Gribben sent a copy to all owners on 10 June 2003 inviting motions.

I do not propose to proceed further with this application as clearly it refers to the same matters raised in O’Dea’s application which will be resolved when the adjudicator determines the final order to that application. I do not know why this application was lodged by Pechey when one another has already been lodged by another owner.