Casablanca Domes [2005] QBCCMCmr 62 (4 February 2005)

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 Thursday 11^th March 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 Thursday 11^th March 2004 is invalid
C. That any meeting held as the result of an adjournment of the extraordinary general meeting of the body corporate for Casablanca Domes community titles scheme 18334 scheduled for Thursday 11^th March 2004 is invalid
D. That any resolution purportedly passed at any meeting held as the result of an adjournment of the extraordinary general meeting of the body corporate for Casablanca Domes community titles scheme 18334 scheduled for 11^th March 2004 is invalid

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0245-2004

"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:

As in Application 0237-2004, 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 11 March 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 19 February 2004.

The meeting of 11 March 2004 was called primarily to remedy the alleged defect in the 16 January 2004 meeting. In view of my order in Application 0237-2004, whereby I dismissed the application seeking to invalidate that meeting, the meeting of 11 March 2004 (which was adjourned to 18 March 2004) was unnecessary to the extent that it dealt with the motions previously considered. However, the meeting also considered two further motions. The first of those motions was for the body corporate to commence proceedings against the owners of lot 11 (the applicants) seeking appropriate orders for removal of the illegal structure erected by the applicants and the reinstatement of approved buildings on lot 11. The second motion was for the commencement of proceedings against the applicants for the supply of insurance details and for other ancillary orders.

The body corporate committee and all owners were invited to respond to the application. Submissions were received from the body corporate manager on behalf of the committee and from the majority owner in the scheme. Once again it was argued that adequate notice of the meeting had been given, and that the applicants were merely trying to frustrate the will of the body corporate.

DETERMINATION:

In Application 0237-2004 I found that the date on which notice of a meeting was given was the date on which it was sent by the body corporate manager to lot owners. My reasons for that decision were as follows:

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^[1]. 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 (Application 0496-2004), 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.

However the second aspect for consideration when calculating time relates to the requirement that the meeting must be held "at least 21 days after notice of the meeting is given". The use of the words "at least" requires that the calculation involve clear days (Acts Interpretation Act s38(1)(a)) and therefore only 20 days’ notice of the meeting was given to the applicants instead of 21 days’ notice (February having 29 days in 2004).

I note however that the applicants have not claimed to have been disadvantaged by the shortened period of notice. Their complaint is once again based on a purely technical point, although on this occasion the applicants did not lodge a voting paper, did not attend the meeting and did not appoint a proxy to attend the meeting on their behalf. In the absence of any claim to the contrary by the applicants, I find that there was absolutely no reason for the applicants not to have done so and I accept the claim made by the majority owner and the body corporate committee that their intention was merely to thwart the attempts by the body corporate to sanction them for their own breaches of the Act and the by-laws.

In the circumstances of this matter I regard the shortened period of notice to be non-compliance of an insubstantial nature. 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.

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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Casablanca Domes [2005] QBCCMCmr 62 (4 February 2005)