Coronation Gardens [2004] QBCCMCmr 339 (29 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0382-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24610
Name of Scheme:	Coronation Gardens
Address of Scheme:	37 Paradise Springs Avenue ROBINA QLD 4226

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Bettie April Adams, the owner of lot 50

I hereby order that the secretary of the body corporate shall not call the extraordinary general meeting requested by notice dated 1 June 2004 until this application is finally determined. I further order that this interim order has effect for a period of six months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0382-2004

"Coronation Gardens" CTS 24610

The applicant, Bettie April Adams, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. To overturn the outcome of voting for officers and committee at our past AGM, as 16 sealed envelopes were overlooked by Ernst Body Corporate managers (Ernst)
2. To hold an EGM to rectify the situation.

The applicant has also sought an interim order of an adjudicator under the Act as follows:

1. To declare all positions vacant for the body corporate of Coronation Gardens CTS 24610
2. That an EGM be held to decide the following motions:

a. That the votes contained in the unopened secret ballot envelopes for position of chairperson be added to the votes recorded for this position at the AGM held on 26^th May 2004
b. That the position of secretary and treasurer be filled in accordance with the BCCM (Accommodation) regulations amended 1^st Dec 2003
c. That depending on the outcome of the ballot for position of chairperson, votes contained in the unopened secret ballot envelopes for the position of ordinary members of the committee be counted to determine these positions.

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)). Section 279 of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284 of the Act).

In the supporting grounds the applicant stated that the dispute has arisen because the previous body corporate manager, Ernst, failed to present all ballot papers for the committee elections decided at the annual general meeting held on 26 May 2004. The applicant expressed the view that in these circumstances there was an invalid voting result. The applicant stated that owners want the matter resolved as soon as possible, as committee decisions which affect the scheme are being made.

On 25 June 2004 I conducted a teleconference with the applicant and Mr Ian Bloomfield, the principal of Advanced Body Corporate Administration, which firm is the newly appointed body corporate manager of the scheme. Mr Bloomfield explained that there was a ballot for the chairperson’s position and a separate ballot for the ordinary committee members’ positions. Ultimately the ballot for the ordinary members’ positions was not necessary because one of the nominees was elected to the position of chairperson, and another nominee was unfinancial, and therefore ineligible for election, thereby allowing all remaining nominees to be elected unopposed.

Mr Bloomfield advised me that the committee had held a meeting on 24 June 2004, at which it was decided to lodge a further application seeking a declaratory order as to the validity of the applicant’s nomination for the position of chairperson. Mr Bloomfield stated that he anticipated the further application to be lodged in the Commissioner’s office by the middle of the next week (that is, by the end of the month).

Mr Bloomfield also expressed concern that the committee had received a notice requesting that an extraordinary general meeting be called to resolve the issue concerning the committee election. Mr Bloomfield explained that in the committee’s view the problem might be resolved by an order from this office, but in the meantime the committee is obliged to call and hold the requested extraordinary general meeting, under section 61(3) of the Standard Module, which might ultimately result in costs being incurred unnecessarily. I advised the applicant and Mr Bloomfield that I would make a preliminary interim order that the requested extraordinary general meeting not be held until such time as I had considered all of the material in relation to this dispute, and the associated dispute to which Mr Bloomfield had referred.

The matter will now be investigated in accordance with the usual processes undertaken by this office, including seeking submissions of the relevant parties before a further order is made.

Section 279(2) of the Act provides –

279 Interim orders in context of adjudication
(2) An interim order--

(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when--

(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred.

In my order I have provided that the preliminary interim order has effect for a period of six months, although I fully expect that the matter will be resolved well before that time has expired. I have determined such a time frame to obviate the necessity for any party to have to seek an extension of the order.