Casablanca Domes [2005] QBCCMCmr 59 (3 February 2005)

Number of Scheme:	18334
Name of Scheme:	Casablanca Domes
Address of Scheme:	47 Vassey Esplanade, TRINITY BEACH QLD 4879

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

I hereby order that the application for orders:

A. That the extraordinary general meeting of the body corporate for Casablanca Domes community titles scheme 18334 on Friday 16^th January 2004 is invalid
B. That any resolution purportedly passed at the extraordinary general meeting of the body corporate for Casablanca Domes community titles scheme 18334 on Friday 16^th January 2004 is invalid

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0237-2004

"Casablanca Domes" CTS 18334

ORDERS SOUGHT:

The applicants, Giuseppe Grimaudo & Corinne Laurelle Grimaudo, have sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISDICTION:

The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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

(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)).

SCHEME DETAILS:

Casablanca Domes registered as a building format plan on 15 June 1994 and comprises 11 lots. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). It is primarily used for residential purposes, although lot 11 is operated as a restaurant.

BACKGROUND:

The applicants’ complaint is that the body corporate is in breach of the regulations in relation to the calling of the extraordinary general meeting which was held on 16 January 2004. The applicants contend that, contrary to the regulations, the meeting was not held at least 21 days after the notice of meeting was given to lot owners. The notice was sent to owners by the body corporate manager on 24 December 2003.

The body corporate committee, the body corporate manager and all owners were invited to respond to the application. Submissions were received from the body corporate manager, from the owner of 8 lots in the scheme and from the chairperson of the body corporate, who is also a director of the majority lot owner.

All submissions challenged the applicants’ interpretation of the method of calculation of time for the meeting under section 41 of the Accommodation Module. In the alternative, it was submitted that the applicants’ objective in lodging the application was "merely to frustrate the will of the other lot owners and the committee and serves no worthwhile purpose." The body corporate manager also pointed out that the applicants have not stated that they were disadvantaged by the alleged shortened notice of the meeting. In addition, the body corporate manager noted that the applicants lodged a voting paper for the meeting, and gave a proxy to their legal representative, who then attended the meeting on their behalf.

In that regard, I note that all motions except for the first motion confirming the accuracy of the minutes of the preceding meeting, dealt with matters pertaining to the applicants’ lot, most of which arose from the applicants’ own alleged breaches of the Act or contraventions of the by-laws.

DETERMINATION:

In determining this matter, I am required to make an order that is just and equitable in the circumstances to resolve the dispute (section 276(1) of the Act).

I note that the applicants have challenged the validity of the meeting on a purely technical point, and have not otherwise claimed that they have been disadvantaged by the alleged breach. I further note that the applicants did not disclose in the supporting grounds that they had exercised their right to vote at the meeting by completing and lodging a voting paper for the meeting, nor that they had appointed their legal representative as their proxy for the meeting, nor that their legal representative had actually attended the meeting. I further note that their legal representative did not raise the applicants’ concerns as to the validity of the meeting at the meeting itself.

I have also noted that another adjudicator considered a similar matter in relation to a notice of meeting on 23 December 2004. In that matter (Warren –v- Body Corporate for Buon Vista – Application No: 0496-2004) Adjudicator Toohey stated:

The legislation requires that "A general meeting must be held at least 21 days after notice of the meeting is given to lot owners" (Standard Module, 43).

In this instance, the general meeting must be held "at least" 21 days after notice of the meeting is given to lot owners. Therefore, it would appear that both the day on which notice was given and the day of the meeting must be excluded from the calculation of this period (Acts Interpretation Act, 38(1)(a)).

The evidence of the applicants indicates that the notice was hand delivered. If the notice of general meeting was sent in the post then it would be deemed to be given to the applicants at the time at which the notice would have been delivered in the ordinary course of post unless the contrary was proved (Acts Interpretation Act, 39A(1)(b), 39A(3)). This would seem to suggest that notice of the meeting should be taken to have been given on 16 July 2004. However, it is not clear that this provision applies to hand delivery in which case the better view may be that notice of the meeting was given to the applicants at 12.45 am on 17 July 2004 when they became aware of the notice.

On the other hand, it is arguable that it was intended by the legislature that notice of a meeting is "given" on the date that notice is sent to the address recorded for a particular owner on the body corporate roll. The legislation contains detailed provisions requiring owners to have an address for service and requiring the body corporate to keep a roll containing the address of all lot owners (Standard Module 141, 143). Further, the provision requiring written notice of a general meeting states that the notice "if not given personally, must be sent to the owner at the owner’s address for service" (Standard Module, 42(1)). This may show an intention that notice be considered "given" when the secretary, or other authorised person, sends the notice to the owner’s address for service. I note that this interpretation is contrary to the provisions of the Acts Interpretation Act 1954 but that provisions of the Acts Interpretation Act may be displaced by contrary intention in another Act (Acts Interpretation Act, 4).

The advantage of this second interpretation is that it avoids the difficulties for a secretary in calculating the period it would take for notices to be delivered to an owner in the ordinary course of the post. In fact, there are special circumstances where the address for service of an owner may be in a country other than Australia (Standard Module, 141(2)).

In extreme cases it could be almost impossible for a secretary to form a realistic estimate of how long it would take for notice of the meeting to be delivered in the ordinary course of the post and it could take several weeks for a body corporate to be able to call and hold a general meeting. Further, I note that the time for notice of meetings is significantly longer under the current legislation than its predecessor, the Building Units and Group Titles Act 1980. Particularly as owners are generally required to provide an Australian address, this extension of time from 7 days to 21 days appears to allow ample notice of meetings to owners even if the period is notice is considered to be "given" at the time the secretary sends the notice of meeting.

Having said that, in this particular instance, the notice was dated 16 July 2004 and the evidence indicates that the notice was hand delivered to the applicants address on that date. Therefore, irrespective of which interpretation is taken, applicants were only given 19 or 20 clear days’ notice rather than 21 days’ notice as required by the legislation (Standard Module 42, 43 ).

The relevant question is therefore whether giving only a 19 or 20 day notice period should invalidate the meeting. In this respect, the Applicants have presented nothing to indicate that any owner was unable to properly participate in the extraordinary general meeting due to the alleged lateness of receipt of the notice of the meeting. This leads me to the conclusion that it would not be just and equitable to invalidate the meeting, or any part of the meeting, for lack of sufficient notice to owners.

In coming to this conclusion, I am mindful of the views expressed by His Honour Judge Boulton DCJ in Chen v Body Corporate for Wishart Village CTS 19482^[1]. In this decision, Judge Boulton made the following comments:

The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

In summary, meetings of body corporate committees, and general meetings of body corporate members, will not be declared void on the basis of minor irregularities that do not significantly impact on the ability of members to participate in the decision making processes of their body corporate.

This type of issue being raised by the applicants without suggesting that they suffered any prejudice from the irregularity merely lends support to the body corporate’s claim that the application is frivolous and vexatious.

The circumstances of this application differ from the above application to the extent that the relevant regulation module in this application is the Accommodation Module as opposed to the Standard Module in the application above.

I have considered all of the material before me in relation to this application. If I were to accept the applicants’ argument in relation to the calculation of time under section 41 of the Accommodation Module, then they had 17 days’ notice of the meeting rather than 21 days. However, without any claim being made by the applicants that this shortened period of notice had prevented them from exercising their democratic rights in relation to the meeting, or that they were disadvantaged in some other way, I am at a loss to understand the purpose of the application, unless it is, as claimed by the majority owner and the body corporate manager, an attempt to frustrate the proper administration of the body corporate. I have formed the view that this claim is likely to be correct, given the nature of the motions decided at the meeting.

Furthermore, I am also mindful of the views expressed by His Honour Judge Boulton DCJ in Chen v Body Corporate for Wishart Village CTS 19482^[2]. I do not regard the shortened period of notice, in the absence of complaint of disadvantage or inability to vote, as representing a substantial non-compliance with the regulations in the circumstances of this matter. On this basis I would not have been persuaded to make the orders sought by the applicants.

However, I do not accept the applicants’ argument as to calculation of time in any event. It is my view that the legislature did intend that the notice of meeting is "given" on the date that it is sent to the owners’ addresses as recorded on the body corporate roll, and that this was intended to give certainty to owners and to the body corporate. I have formed this view because under the previous legislation (Building Units and Group Titles Act 1980) the notice of a general meeting was required to be "served" on owners at least 7 days before the meeting (Second Schedule Part 2 s4(a)(i)).

Under the current legislation, not only has the time been enlarged to 21 days but the notice is now required to be "given" to owners. As Adjudicator Toohey observed, the provision ( in this application, section 40(1) of the Accommodation Module) requiring written notice of a general meeting states that the notice "if not given personally, must be sent to the owner at the owner’s address for service". I consider that the use of the word "given" in the current legislation in place of the word "served" as used in the previous legislation was also intended to convey a change in the mode of notice. Furthermore, although there is a requirement under the current legislation that an owner’s address for service be within Australia, the default provision of the regulations (if no address for service is notified), is that the address for service is the last notified residential or business address whether inside or outside Australia. Clearly therefore calculating when an owner in Brisbane, Ballarat, Muckadilla or Beijing had received a notice of meeting would cause endless difficulties for bodies corporate, and could result in general meetings being unnecessarily delayed.

On this basis therefore I conclude that the applicants did receive the requisite 21 days’ notice for the meeting on 16 January 2004, and accordingly, I have dismissed the application in its entirety.

^[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.

^[2] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Casablanca Domes [2005] QBCCMCmr 59 (3 February 2005)