Raby Bay Harbour Commercial Centre [2005] QBCCMCmr 374 (12 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0412-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30945
Name of Scheme:	Raby Bay Harbour Commercial Centre
Address of Scheme:	152 / 166 Shore Street West CLEVELAND QLD 4163

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

the Body Corporate for Raby Bay Harbour Commercial Centre

I hereby order that the application by the body corporate for Raby Bay Harbour Commercial Centre for an order appointing an administrator to the PBC until the body corporate has collected sufficient funds to be able to meet all of its debts, with the administrator to have all of the powers of the committee and the body corporate in general meeting, is dismissed under section 270(1)(a) of the Act on the basis that it appears to the adjudicator that jurisdiction to deal with the dispute does not exist.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0412-2005

"Raby Bay Harbour Commercial Centre" CTS 30945

The application

The applicant, the body corporate for Raby Bay Harbour Commercial Centre has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

An order appointing an administrator to the PBC until the body corporate has collected sufficient funds to be able to meet all of its debts. With the administrator to have all of the powers of the committee and the body corporate in general meeting.

The applicant body corporate as sought the following interim orders, quote:

A declaration that the purported meeting of the PBC to be held at the offices of MDRN at 5:00 pm on 7 June 2005 is not a valid meeting of the PBC or that the purported meeting should not proceed.
A declaration that Mr Allan Jones is not the appointed representative of the Apartments BC to the PBC and that Jr Jones is to cease representing himself as the chairperson or committee member of the PBC.

The scheme

The scheme is a subdivision of 22 lots. The regulation module applying to the scheme is the standard module.

The dispute

The applicant body corporate, which is a subsidiary scheme along with two others, of the principal body corporate (Raby Bay Harbour) seeks an order appointing an administrator for certain purposes to the PBC. The applicant has also sought certain interim orders against Mr Allan Jones.

Jurisdiction and power to make orders

The application purports to be by the body corporate of Raby Bay Harbour Commercial Centre against Allan Jones. The capacity of Mr Jones in respect of the Commercial Centre is not specified. The application is signed by Herdlaw Solicitors.

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". Section 227 provides:

227 Meaning of "dispute"
(1) A "dispute" is a dispute between--
(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or
(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or
(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or
(d) the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or
(e) the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3, part 2,
division 7;37 or
(f) the body corporate for a community titles scheme and a letting agent for the scheme; or
(g) the body corporate for a community titles scheme and a member of the committee for the body corporate; or
(h) the committee for the body corporate for a community titles scheme and a member of the committee; or
(i) the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body
corporate property.
(2) An application by a person mentioned in subsection (1)(a) to (h) for a declaratory order about the operation of this Act is also a "dispute" even if there is no affected person for the application.
Example for subsection (2)--
An application by a body corporate for an order declaring the financial year for the body corporate.

The application states that the jurisdictional basis for this dispute is "body corporate and committee member". The named respondent to the application is "Allan Jones". Mr Jones is not a member of the committee of the applicant body corporate, namely the Commercial Centre. Rather, Mr Jones is a member of the committee of another subsidiary scheme, namely RBH Apartments, and apparently, the Apartments representative on the Principal Body Corporate.

In my view, for jurisdiction for this dispute to exist under section 227 then the body corporate in question and the member of the committee who is the respondent must be from the same scheme. This is not the case here, as explained above. Mr Jones is not a member of the committee of the applicant body corporate. The provisions of section 227 do not operate to create jurisdiction for this dispute. In the circumstances, I am not satisfied that jurisdiction exists for this dispute under section 227 of the Act, and I intend to dismiss the application.