Ellendee Court [2004] QBCCMCmr 431 (7 September 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Henry Bryce, the Owner(s) of lot 7

I hereby order that the body corporate is to:

1. Within two weeks, send all owners a notice giving them three weeks to provide nominations for committee positions and motions for consideration at general meeting;
2. Within a further six weeks, send a notice of meeting and voting paper to all owners;
3. Within a further six weeks, hold a general meeting.

I further order that, within two weeks, the body corporate is to provide a copy of this order and reasons for decision to all owners.

I hereby authorise the body corporate secretary to take all actions reasonably necessary for the body corporate to comply with this order. The procedures in the Standard Module governing giving notice for and holding an annual general meeting are to be followed as far as practicable (except that the secretary is not required to co-ordinate the giving of notices and the holding of the general meeting with the end of financial year date of the body corporate). Photocopying and postage costs are to be met from the administrative fund.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0381-2004

"Ellendee Court" CTS 21329

Ellendee Court Community Titles Scheme (Ellendee) is a 10 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Henry Bryce, the owner of lot 7 (applicant) seeking orders against the body corporate for Ellendee (respondent). The applicant is seeking to void a meeting of the body corporate. From the minutes attached to the application, I understand that this was the meeting of 1 March 2004.

The applicant’s main submissions were to the effect that there is only one committee member and the meetings are not being run properly. In particular, he says that owners are not being given an opportunity to vote on matters that concern them, including security and the storage of his yacht.

The body corporate’s main submissions were to the effect that some procedures may not have been followed exactly but it is a small body corporate where it is more cost effective to use the telephone and word of mouth to give notice of meetings. Further, there have been problems with the applicant parking his yacht on common property or in a carport area and protruding approximately two and a half metres onto the common property.

I have concerns about the manner in which Ellendee is being managed. The Act recognises the importance of balancing the rights of individuals with the responsibility for self management as an inherent aspect of community title schemes. The day to day running of the scheme is to be by committee. There should be an effective committee at all times with any vacancies promptly filled. Further, there is a requirement to hold a general meeting at least annually with certain types of decision reserved for voting by all owners at general meetings. These general meetings cannot be held informally but require formal written notice of all resolutions to be voted on and provision of a written voting paper to all owners. These means that owners do not need to attend general meetings in person but can simply submit their written voting paper.

If committee members have difficulty in finding out what is necessary to hold meetings that comply with the legislation then owners can obtain information from this office free of charge. The telephone number for obtaining information is 1800 060 119. Alternatively, owners may wish to make enquiries about engaging a private body corporate manager to assist with administration including the calling of meetings, setting of budgets and collection of levies.

Owners elect committee representatives to make decisions on their behalf. The committee cannot make decisions on all matters affecting the body corporate. For example, the committee cannot authorise any project with a total cost exceeding $125 per lot so decisions on spending above that amount normally need to be made in general meeting (Standard Module 26, 103). However, where the committee does have authority to make decisions, those decisions take effect as decisions of the body corporate (Act 100, Standard Module 26).

Where committee decisions are properly made they cannot be overturned by a minority of owners. However, the legislation contains safeguards giving owners the opportunity to receive notice of committee resolutions and a majority can vote to overturn those resolutions.

The committee for Ellendee must consist of 3 to 7 members, depending on how many persons nominate for committee membership (Standard Module, 9). At least half the voting committee members must attend each committee meeting in order to constitute a quorum (Standard Module, 32). If a committee position becomes vacant then the committee must, within one month, either appoint a replacement or call a general meeting to fill the vacancy (Standard Module, 25C). In this instance, there is no proper committee and I will therefore issue an order requiring the calling and holding of a general meeting at which committee members can be appointed.

To avoid all owners having to physically attend general meetings, all motions to be voted on at the meeting have to be submitted well before the meeting is held. This enables a written voting paper to be sent with the notice of meeting which can be returned by an owner instead of, or as well as, physically attending the meeting. For an annual general meeting, the secretary is required to serve a notice on each lot owner requesting committee nominations and motions 3 to 6 weeks before the end of the financial year (Standard Module 13, 41(5)).

At least 21 days’ written notice a general meeting needs to be given, accompanied by a voting paper listing all motions to be decided at the meeting (Standard Module, 42). All owners wishing to vote who will not be attending the meeting need to return their voting papers to the secretary before the start of the meeting (Standard Module, 51(2)).

The applicant expresses concern about owners not being able to vote on decisions he wants owners to consider regarding spending money to improve security and granting him permission to store his yacht partly on the common property. If the applicant wishes to have owners vote on motions to this effect then he should submit those motions to the secretary for consideration by owners. Similarly, other owners may submit any motion to the secretary that they wish all owners to consider. When submitting motions, owners should be aware that any motion requiring body corporate expenditure should specify the amount of expenditure and include two quotes if the expenditure is above the major spending limit for the body corporate (Standard Module, 104).

The applicant seeks to invalidate the meeting of 1 March 2004. However, the legislation provides that an application to void a meeting must be made within three months after the meeting (Act, 242). This application was not lodged until 15 June 2004 and is therefore outside this time limit. An adjudicator can waive non-compliance with this time limit for good reason. However, this time limit helps provide certainty for the body corporate and the applicant has not put forward any good reason to waive this time limit. In particular, I am not satisfied that the applicant has suffered any prejudice from the alleged irregularities that cannot be adequately addressed at a future meeting of the body corporate.

I will therefore not invalidate the meeting of 1 March 2004 but will simply require the calling of another meeting at which a committee can be elected and for which motions can be put forward by owners. To give owners an opportunity to submit committee nominations and motions I will require the body corporate to send a notice to all owners requesting submission of nominations and motions. I will authorise the secretary to perform these actions for the body corporate. If the secretary requires information regarding the calling of meeting, or copies of forms that can be used, then he is welcome to contact this office on 1800 060 119.

Number of Scheme:	21329
Name of Scheme:	Ellendee Court
Address of Scheme:	230 Alice Street MARYBOROUGH QLD 4560

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ellendee Court [2004] QBCCMCmr 431 (7 September 2004)