Jerdanefield Tower [2005] QBCCMCmr 100 (21 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0765-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14277
Name of Scheme:	Jerdanefield Tower
Address of Scheme:	36 Jerdanefield Road, ST LUCIA Q 4067

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Anthony David Quintner, the Owner of Lot 22

I hereby order that the application for an order for provision of minutes of a committee meeting held on 14 September 2004 Is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0765-2004

"Jerdanefield Tower" CTS 14277

The Scheme

The "Jerdanefield Tower" community titles scheme was registered as a building units plan of subdivision on 27 November 1972, comprising 36 lots. It is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

The Application

This application is brought by the Owner of Lot 22, Anthony David Quintner (the Applicant) against the body corporate, seeking an order for the provision of minutes of a committee meeting held on 14 September 2004.

Submissions

Submissions in response to the application were sought from all owners and the body corporate committee. Eight submissions were received, seven from lot owners and one from Mrs Campbell, the body corporate manager for the scheme. The Applicant exercised his right to inspect the submissions and has made a reply in response to them.

Background

The Applicant has supplied a copy of a Notice of Committee Meeting, dated 1 September 2004, calling a committee meeting to be held at 36 Jerdanefield Road, St Lucia on Tuesday, 14 September 2004 at 7pm. The Agenda for the meeting was stated to be as follows:

AGENDA

1.	Attendance
2.	Confirmation of Committee Meeting Minutes held on 10.8.2004

Business arising from Minutes:

Tree root removal

Insurance Claim (Michael Yeates)

Lift – leveller

Sinking Fund Plan

By-Laws

Landscaping – requisition to call EGM

Current position re renovation of Unit 36

Jim Bassingthwaighte and a representative from acoustics firm will attend the meeting.

Current position re water softener room.

3.	Correspondence
4.	Foyer refurbishment – current position – costings
5.	Facility Management – Star Building
6.	Master Plan
7.	Finance
8.	GENERAL BUSINESS

It appears that a properly constituted committee meeting was held on 14 September 2004 and certain matters were dealt with. The body corporate manager states in her submission, that "During this meeting tension developed between some of the members and upon the Chairman’s refusing to accept a ‘Statement of intent from the Jerdanefield Tower Body Corporate Committee’ submitted by a Committee Member, three members left the meeting." She goes on to state that "Prior to these members leaving the meeting, responsibility for certain duties had been agreed to, however, these responsibilities were aborted when letters of resignation were received and the meeting was subsequently aborted as decisions could not be carried out in accordance with agreements made at that meeting."

I understand that on 27 October 2004 an extraordinary general meeting of the body corporate was held and the vacant positions on the committee created by the resignations of four committee members following the committee meeting held on 14 September 2004 were filled.

The body corporate manager further states in her submission that "On 30 November 2004 a Committee Meeting of the Body Corporate was held at which all Agenda items on notice for the meeting of the 14 September 2004 were on notice and dealt with. Minutes of this meeting were subsequently forwarded to all owners."

I have sighted a copy of the minutes of the Committee Meeting held on 30 November 2004 and it appears as though all items listed on the agenda for the committee meeting held on 14 September 2004 were considered at the meeting held on 30 November 2004, with the exception of "Current position re water softener room" which appears to have arisen out of the minutes of the committee meeting held on 10 August 2004.

Decision

Section 36 of the Standard Module makes provision for minutes and other records of the committee. It provides as follows:

36 Minutes and other records of committee
(1) The committee must ensure--
(a) full and accurate minutes of its meetings are taken; and
(b) a full and accurate record is kept of each motion voted on other
than at a meeting.
(2) The secretary must give a copy of the minutes of each meeting and of
any resolution voted on other than at a meeting to the following persons--
(a) each member of the committee;
(b) each lot owner who is not a member of the committee.
(3) Subsection (2)(b) does not apply to a lot owner who--
(a) has given the secretary a written notice instructing the secretary
that the lot owner does not wish to be given copies of the minutes
of committee meetings and resolutions voted on other than at
meetings; and
(b) has not withdrawn the instruction.
(4) The copy must be given to the person--
(a) within 21 days after--
(i) for a copy of minutes of a meeting--the holding of the
meeting; or
(ii) for a copy of a resolution voted on other than at a
meeting--the passing of the resolution; and
(b) in 1 of the following ways--
(i) by handing it to the person;
(ii) by sending it by mail;
(iii) by sending it by facsimile;
(iv) by sending it electronically.
(5) In this section--
"full and accurate minutes", of a meeting, means minutes including each
of the following--
(a) the date, time and place of the meeting;
(b) the names of persons present and details of the capacity in which
they attended the meeting;
(c) details of proxies tabled;
(d) the words of each question decided;
(e) the number of votes for and against each question decided;
(f) details of correspondence, reports, notices or other documents
tabled;
(g) the time the meeting closed;
(h) details of the next scheduled meeting;
(i) the secretary’s name and contact address.
"full and accurate record", of a motion voted on other than at a meeting,
means a record including each of the following--
(a) the date notice of the motion was given;
(b) the names of the committee members to whom notice was given;
(c) the words of the motion voted on;
(d) the names of the committee members who voted on the motion;
(e) the number of votes for and against the motion.

Section 36(1)(a) requires the committee to ensure that full and accurate minutes of its meetings are taken. "Full and accurate minutes" are defined in section 36(5). In a telephone conversation with a member of this office on 17 February 2005, the Body Corporate Manager stated that no minutes of the meeting held on 14 September 2004 were produced, although she has a few notes. She states in her submission that "Minutes of the meeting of 14 September 2004 have not been provided due to the fact that any decisions made prior to members leaving the meeting could not subsequently be carried out. Accordingly, all matters were placed on the agenda for the committee meeting of 30 November 2004 and have now been attended to." While I can appreciate that the meeting held on 14 September 2004 was clearly a controversial one that created much tension amongst committee members at the time and that implementation of certain decisions made could be difficult or impossible in the event of certain committee members subsequently resigning, there is no excuse for not complying with the legislative obligation of the committee to ensure that full and accurate minutes of its meetings are taken.

The Standard Module makes no provision for committee meetings to be "aborted". The common law makes some provision for meetings to be "adjourned". In Joske’s Law and Procedure at Meetings in Australia^[1], it is stated that "Disorder at a meeting may become so gross as to bring about its deferment or justify those not creating the disorder in retiring, in which event unfinished business can no longer be proceeded with but must be delayed."^[2] In circumstances where it is impossible to maintain order, it may be necessary to adjourn the meeting. Before adjourning for this purpose, the chair should endeavour to secure a vote on a motion for adjournment. It appears to me therefore that rather than "aborting" the meeting, and calling another to discuss all items on the agenda for the original meeting, the original meeting should have been adjourned, before being closed by the chairperson. Minutes of the meeting should have been produced and distributed to owners in accordance with section 36(2) of the Standard Module. If the tension at the meeting arose, as the material on file suggests, in relation to a "Master Plan" which appeared as item 6 on an agenda containing 8 items, it is certainly feasible that other matters were discussed and voted on prior to this stage. There is no reason why such decisions should not have been minuted and circulated to owners. Any matters not dealt with at the meeting held on 14 September 2004 and any matters that were decided but which could not be implemented due to subsequent resignations by committee members should have been considered at an adjourned meeting of the committee.

Despite having found that minutes of the committee meeting held on 14 September 2004 should have been produced and distributed to owners in accordance with section 36 of the Standard Module, I nevertheless decline to make the order sought in this particular case for the following reasons:

• All matters appearing on the agenda for the committee meeting held on 14 September 2004 (with the exception of one previously mentioned) were considered at a further committee meeting held on 30 November 2004. The body corporate manager states that the minutes of this meeting were circulated to all owners and she has not received any complaints in relation to them.
• Despite having sought submissions from all owners excluding the Applicant, not one supported the Applicant in requiring minutes of the meeting held on 14 September 2004.
• The reasons the Applicant advances in the grounds to his application for requiring the minutes of the committee meeting held on 14 September 2004 appear to be to assist the body corporate (or at least the Applicant) in "gaining an understanding of the events which resulted in four resignations" from the committee. The requirement to take "full and accurate minutes" of committee meetings as defined in section 36(5) of the Standard Module does not require such information to be included. A committee member can resign from their position on the committee by giving written notice to the chairperson or secretary.^[3] There is no requirement to provide reasons for the resignation.
• The Applicant has not objected to any decisions that were purportedly made at the committee meetings held on 14 September or 30 November 2004.

In such circumstances, I see no point in requiring the body corporate to produce and distribute minutes of the committee meeting held on 14 September 2004. To make such an order would not, in my view, be just and equitable. I have therefore dismissed the application.

^[1] Ninth edition, Magner Eilis S, Lawbook Co. 2001
^[2] Colorado Corp Pty Ltd v. Plautus [1966] 2 NSWLR 598
^[3] See section 25(2)(c) of the Standard Module