Weimar [2004] QBCCMCmr 395 (17 August 2004)

Last Updated: 30 September 2005

REFERENCE: 0513-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13555
Name of Scheme:	Weimar
Address of Scheme:	59 Errol Avenue, PARADISE POINT QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gee Corp Pty Ltd, the owner of lot 4

I hereby order that the body corporate shall not consider motion 2 (concerning proposed extension to lot 2) by special resolution at the extraordinary general meeting scheduled for 26 August 2004. I further order that the body corporate shall consider any further motion relating to the proposed extension to lot 2 as a motion which must be passed by resolution without dissent.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0513-2004

"Weimar" CTS 13555

The applicant, Gee Corp Pty Ltd, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the approval of the Gold Coast City Council to the (attached) building plans (for lot 2) be declared void as no lawful consent to such a development application has been granted by the body corporate.

The applicant also sought an interim order of an adjudicator as follows:

The secretary be restrained from holding any meeting of the body corporate purporting to put motion 2 (as attached) to any vote by the lot owners.

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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

The applicant provided copies of relevant documents and of correspondence between its solicitors and the secretary of the body corporate. The applicant’s position in relation to the proposal by the owners of lot 2 to extend their lot is best summarised in a letter dated 3 August 2004 from its solicitors to the body corporate secretary. In that letter the applicant’s solicitors referred to a letter dated 27 July 2004 from the secretary to all owners purporting to give notice of an extraordinary general meeting to be held on 4 August 2004 and pointed out that the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module) (by which this scheme is regulated) requires that at least 21 days’ notice of a general meeting is required to be given to owners.

The applicant’s solicitors also pointed out that the motion by which the owners of lot 2 intended to seek body corporate approval (by special resolution) for their proposal was out of order because the proposed renovation would effect, amongst other things:

• A change to the exterior of the building
• The granting of exclusive use over common property (which requires a motion to be passed by resolution without dissent)

The solicitors noted that these two matters would require the recording of a new community management statement.

The body corporate secretary wrote to owners again on 5 August 2004 advising that the meeting of 4 August 2004 "has been adjourned until Thursday 26^th August 2004, providing all owners/representatives with 21 days’ notice." A further voting paper was enclosed with the letter, showing the new meeting date, but otherwise still recording that motion 2 was to be decided by special resolution.

The applicant’s solicitors correctly point out that motion 2 should be decided by resolution without dissent. They also correctly point out that if the body corporate, by resolution without dissent, were to approve the planned extension to lot 2 then a motion, also by resolution without dissent, would have to be considered by owners to consent to a new community management statement to record the relevant exclusive use by-law. Both motions would have to be considered at the same meeting.

I have ordered that the body corporate shall not consider motion 2 at the meeting scheduled for 26 August 2004. I have further ordered that any further motion seeking to obtain body corporate approval for the proposed extension to lot 2 shall be decided by resolution without dissent.

Whilst the applicant has not sought any other interim orders, I note that the secretary has written to owners on 6 August 2004 recommending that they appoint a professional body corporate manager at the meeting scheduled for 26 August 2004. There is no motion on the agenda of the meeting for the appointment of a body corporate manager.

Section 52(5) of the Standard Module provides:

52 Voting at general meeting

(1) ...

(2) ...

(3) ...

(4) ...

(5) A general meeting may pass a resolution on a motion only if the

motion is--

(a) a motion--

(i) included as an item of business on the general meeting’s

agenda; and

(ii) stated in a voting paper accompanying the notice of the

meeting; or

(b) 1 or more of the following--

(i) a procedural motion for the conduct of the meeting;

(ii) a motion to amend a motion;

(iii) a motion to correct minutes.

Furthermore, section 87 of the Standard Module provides:

87 Authority to make engagement or give authorisation, or amend

engagement or authorisation

(1) The body corporate may--

(a) engage a person as a body corporate manager or service

contractor; or

(b) authorise a person as a letting agent; or

(c) agree to an amendment of an engagement or authorisation

mentioned in paragraph (a) or (b).

(2) The body corporate may act under subsection (1) only if--

(a) the body corporate passes an ordinary resolution approving the

engagement, authorisation or amendment and, for the passing of

the resolution, no votes are exercised by proxy; and

(b) the motion approving the engagement, authorisation or

amendment is, for any of the following, decided by secret

ballot--

(i) an authorisation of a person as a letting agent;

(ii) an engagement of a person as a service contractor if the

person is to be a caretaking service contractor;

(iii) an agreement to amend a person’s engagement as a service

contractor, or a person’s authorisation as a letting agent, to

include a right or option of extension or renewal; and

(c) the material forwarded to members of the body corporate for the

general meeting that considers the motion approving the

engagement, authorisation or amendment includes--

(i) for an engagement or authorisation--the terms of the

engagement or authorisation, including--

(A) when the term of the engagement or authorisation

begins and ends; and

(B) the term of any right or option of extension or renewal

of the engagement or authorisation; and

(ii) for an agreement to amend a person’s engagement as a

service contractor, or a person’s authorisation as a letting

agent, to include a right or option of extension or

renewal--an explanatory note in the approved form

explaining the nature of the amendment; and

(iii) for another agreement to amend an engagement or

authorisation--the terms and effect of the amendment.

(3) However, subsection (2)(b) does not apply if all the lots included in

the scheme have identical ownership.

Whilst it would appear that owners might benefit from the appointment of a professional body corporate manager, they must ensure that they adhere to the requirements of the regulations in making such an appointment.

This matter will now be investigated in accordance with the usual procedures of this office, which will include an invitation to all owners to respond to the application. A final order will be made in due course.