Kemt Chambers [2004] QBCCMCmr 25 (14 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0016-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9329
Name of Scheme:	Kemt Chambers
Address of Scheme:	2902 Logan Road UNDERWOOD QLD 4119

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ken E Dale as the representative for KEMT NOMINEES PTY LTD, owner of Lot 3,

I hereby order that the resolution purported to have been passed in respect of Motion 11 at the annual general meeting held on 6 or 7 January 2004 for an enforcement action to be taken against Dittmann’s Organ Stop Pty Ltd the owner of Lot 2, is void and of no effect. I further order that the application for orders to implement the purported resolution and to engage KB Management Services Pty Ltd for that purpose, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0016-2004

"Kemt Chambers" CTS 9329

The applicant, Ken Dale for Kemt Nominees Pty Ltd of Lot 3, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") to

1. That the resolution passed in respect of Motion 11 at the annual general meeting held on 16 December 2003 for enforcement of Order 724-2003 of 30 May 2003 against Dittmans Organ Stop Pty Ltd owner of Lot 3, be complied with by the body corporate.

2. That the rejection of the motion at the same annual general meeting to re-engage K B Management Services as Body Corporate Manager, be overturned in order that it may continue its services to the body corporate, in particular to implement the abovementioned resolution to enforce Order 724-2003 as Beverly Williams has a conflict of interest as the secretary in implementing an action against her company.

The applicant has also made application for an interim order in the same terms.


JURISDICTION:
This is a dispute between an owner (the applicant Dale) and the body corporate (the respondent), concerning the implementation of a body corporate resolution and the engagement of a Body Corporate Manager. These are matters 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 because: the facts of the matter are relatively simple and clear; the relevant parties (see later under heading "Application and Submissions" following) have been given the opportunity to speak to the disputed matter; sufficient information is available to determine the matter; and a prompt resolution of the dispute is in the interests of all parties.

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:
For the reasons given under "Jurisdiction" I have determined to resolve the disputes by a teleconference between the relevant parties in lieu of formal notification of the application and an invitation to owners to make a written submission in the matters.

On Tuesday 13 January 2004, I conducted a teleconference with the applicant representative (Dale) and Beverly Willams, body corporate secretary and representative for Dittmann’s Organ Stop Pty Ltd the owner of Lot 2.

The brief facts of the matter, based on information contained in the application and given during the teleconference, are as follows.

On 30 May 2003 a fellow adjudicator issued Order 724-2003 against Dittmann’s Organ Stop Pty Ltd ("Dittmann") to remove certain signage and to affix further signage in a certain way. Dittmann has not complied with the order.

Motion 11 put to the annual general meeting held on 6 or 7 January 2004 was for the abovementioned order to be enforced and the minutes show that it was passed on a poll vote of 2 lot entitlements for the motion and 1 lot entitlement against. The favourable vote was cast by the applicant Kemt Nominees Pty Ltd ("Kemt") and the opposing vote by the owner of Lot 1, Russell Preston. Both Dale and Williams confirmed that Williams was denied a vote at the meeting by the chair, Yvonne Barnes of KB Management Services ("KBMS").

Williams stated that she had submitted a number of motions to KBMS, including a motion to vary the building signage allowing her sign to stay in place but for the street number "2902" to appear elsewhere, but they were not included in the agenda despite having been submitted by the end of the body corporate financial year, 31 October 2003. She said that she had discussed the proposed signage motion with Preston before submitting it with his approval.


DETERMINATION:
"Kemt Chambers" was registered as a building titles plan (now termed a building format plan) on 2 November 1983 and comprises 3 lots.

The following comments are a summary of those made to the parties during the teleconference and foreshadowed as fashioning my order to the application.

Firstly, Barnes of KBMS was in error in refusing Williams (who was present at the meeting) a vote on Motion 11 on the ground that Dittmann (which she represented) had a conflict of interest in the subject matter of the motion. I note that she was allowed a vote on other motions requiring an ordinary resolution at the meeting, confirming the basis was as stated by Williams and Dale. While the legislation precludes a committee member voting in committee on a matter the member has an interest in, that is not a bar to an owner voting on a matter in general meeting. Accordingly, Williams was incorrectly refused a vote on Motion 11 which, had it been cast, would obviously have been against the motion. As this resolution is at the core of the application and the orders sought, I have made an order that the resolution is invalid and of no effect.

This means that there is no resolution by the body corporate to enforce Order 724-2003 even though the order still stands, Dittmann having foregone its right to appeal the order. I note that the applicant for that order was the body corporate and at that time Kemt was the owner of two lots and therefore held the majority vote. Under section 288 of the Act, only the body corporate can take an action against Kemt for non-compliance with the order.

As the resolution relied on for the two orders sought is invalid, I have also made an order dismissing the application.

Having foreshadowed this order to Williams and Dale, both parties agreed that in the circumstances it may be in the interests of all owners to: (a) consider the engagement of another, impartial Body Corporate Manager at an extraordinary general meeting ; and (b) perhaps discuss whether there may be an acceptable signage alternative.