Raby Bay Harbour Apartments [2005] QBCCMCmr 357 (29 June 2005)

Last Updated: 2 August 2005

REFERENCE: 0431-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30944
Name of Scheme:	Raby Bay Harbour Apartments
Address of Scheme:	152 - 166 Shore Street West CLEVELAND QLD 4163

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

Carolyn Jean Bell, the owner of lot 5 and stated committee member

I hereby order that pending a final determination of this application, this application being withdrawn or this order being of no effect through operation of law, that in respect of all future committee meetings of the scheme, the secretary shall (1) provide to Carolyn Jean Bell due notice of all such meetings or other proceedings involving the committee members so as to allow Ms Bell to participate as a committee member; (2) to record and include the vote of Ms Bell in any deliberation of the committee such that Ms Bell’s vote is included in the determination of the outcome of any committee motion or other determination.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0431-2005

"Raby Bay Harbour Apartments" CTS 30944

The application

The applicant, Carolyn Jean Bell, the owner of lot 5 and stated committee member has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

That the chairperson and secretary of the body corporate be directed that I have remained a member of the committee of the body corporate since the 2004 AGM and that there have been no grounds to (1) invalidate any vote cast or other step taken by me in that capactity (2) cease providing me with notice of committee meetings.

The applicant has sought the following interim order, quote:

Pending a decision of the adjudicator:

(1)	the secretary provide the applicant with due notice of any meetings of the committee or other steps involving a committee function to enable her to participate;
(2)	The vote of the appplicant in any deliberation of the committee be noted;
(3)	In any committee deliberation in which the vote of the applicant would be determinative, the implementation of the resolution be put in abeyance.

The scheme

The scheme is a subdivision of 30 lots. The regulation module applying to the scheme is the standard module.

Jurisdiction and power to make orders

The applicant, as an owner and committee member, has sought orders against:

• Glynn Foster, the committee chairperson; and
• Pamela Nielson, the committee secretary.

The definition of "dispute" in section 227 of the Act allows for a dispute to arise between "the committee and a member of the committee". I am satisfied that jurisdiction exists for this dispute.

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) 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.

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be refused. It is a matter for an adjudicator to determine in respect of each application.

The dispute

The applicant alleges that she:

• was elected to the committee on 21 June 2004;
• participated in two consecutive committee meetings;
• since the second meeting in August 2004 has ceased to receive notice of committee meetings;
• resigned in March 2005 "due to the fact that meetings were being held during business hours" but that on being advised that "they would try to arrange for them to be after business hours ... I withdrew my resignation" and understands that her "resignation and subsequent withdrawal was not tabled at any committee meetings".

The applicant seeks both the interim and final orders set out above.

Submissions

This office sought to obtain written submissions in respect of the interim order application from the two named committee member respondents. To date nothing has been received from either of these two committee members, despite written notification by this office of the right to make a submission, and further despite several telephone attendances by members of this office to ascertain whether they intended to make a submission.

Determination

This scheme is currently the subject of significant disputation before this office.

In another application, the specific issue of committee membership was in issue. In the Adjudicator’s reasons for decision in 0377 of 2005, the following statements were made by the adjudicator in his determination of that application, quote:

The dispute at hand relates to the appointment of a Mr Smith CPA to act as body corporate manager and to "do a full forensic examination of the financial affairs, documents and management since the inception of the body corporate in 2002" .
Mr Smith was purportedly appointed by an "emergency committee meeting" attended by the Chairperson Mr Foster and Secretary Ms. Neilson and Treasurer Mr. Jones at 12 Noon on Wednesday 18 May 2005. ...
Body corporate records provided to this Office state that the following persons were elected to the committee at the Annual General Meeting held on 21 June 2004:
Chairperson: G Foster
Secretary: P Neilson
Treasurer: A Jones

Committee: (ordinary members)

G. Johnson

D. Weigall

W. Lee

C. Bell

It is claimed that the meeting was convened without notifying all committee members. In particular, Messrs Jones, Lee, Bell and Johnson have stated in writing that the Secretary did not follow the requirements of the Act as they were not given the stipulated 7 days notice. ...

Also in support of the application the applicants have provided a copy of a letter from Mr Jones to Mr Foster dated 17 May 2005 which reads as follows:

I lodge a formal objection to this meeting proceeding as regulation 28 of the Standard Regulation Module has not been complied with.

I request that you call a properly constituted committee meeting for Raby Bay Harbour apartments at a suitable place and time ensuring that all six members of the committee are invited as soon as possible.

However, subsequent to the meeting on 18 May 2005, a letter was distributed to all members of RBH Apartments which included the following statements:

I wish to inform you that Pamela Neilson (Secretary) and I have appointed Bruce Smith CPA as Finance Manager of our Body Corporate for an initial period of three months from 17 May 2005 in accordance with s.310 Body and Community Management act 1997. ....

At a teleconference convened with the parties to this dispute on 16 June 2005, I expressed concern that proper notice of the committee meeting had not been given as required by section 28 of the Body Corporate and Community Management (Standard Module) Regulation 1997. ... .

The respondents were not able to confirm that at least 7 days written notice of the meeting had been provided to the members of the committee and were not able to provide an indication of the total amount payable to Mr Smith.

Mr Foster expressed the view that Carolyn Bell and Greg Johnson were no longer members of the committee presumably pursuant to section 25(2)(d) of the Body Corporate and Community Management (Standard Module) Regulation 1997, as they had each missed two consecutive committee meetings This is disputed by Mr Johnson and by Ms Bell who has advised that she did not attend the meetings as she did not receive notice of meetings, did not receive minutes and had attended meetings as recently as April 2005 with the acquiescence of the Chairman.

Ms Bell has also raised the following concerns:

• Not all committee members were advised of the May 18 meeting;
• Only the chairperson, secretary, treasurer and Mr Lee were informed about the meeting and were not advised that it was a committee meeting;
• In any event 7 days notice was not given to the above;
• Proxies were not called for and therefore not taken into account;
• The terms of reference, responsibilities and role of Mr Smith were not detailed and therefore there is significant scope for him to do more than was originally intended. Potentially, his fees could exceed the relevant Committee spending limit of $125 x 30 (no. of lots).

... On the evidence provided, it would appear that Mr. Foster and Ms. Neilson have seen a need to act decisively in this regard by appointing Mr Smith, who is also undertaking an analysis of the accounts of the Principal Scheme.

... I am of the view that the relevant notices were not given to committee menmbers as required by section 28 of the Body Corporate and Community Management (Standard Module) Regulation 1997. ...

Further, the body corporate may wish to consider whether an extraordinary general meeting should be convened so that a committee can be elected and there is some certainty as to who is a member of the committee and therefore entitled to vote upon resolutions submitted to meetings of the body corporate committee. ...

Determination

In the circumstances, given the above evidence and other findings of the Adjudicator, and the failure of the named respondents to respond to the application, I conclude that the interim order sought by the applicant should, and in fact, needs be made.

I intend to order that, pending a final determination of this application, this application being withdrawn or this order being of no effect through operation of law, that in respect of all future committee meetings of the scheme, the secretary shall

(3)	provide to Carolyn Jean Bell due notice of all such meetings or other proceedings involving the committee members so as to allow Ms Bell to participate as a committee member;
(4)	to record and include the vote of Ms Bell in any deliberation of the committee such that Ms Bell’s vote is included in the determination of the outcome of any committee motion or other determination.

Final order

This application will now proceed to a final determination of the issues raised. Submissions from the named respondents will again be sought. However, all parties should note that should submissions not be received from the named respondents in respect of the final order, then I propose to simply confirm my interim order as my final order.