Kookaburra Park Eco Village [2005] QBCCMCmr 89 (16 February 2005)

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco Village
Address of Scheme:	M/S 368 GIN GIN QLD 4671

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

I hereby order that the application by Edgar Jimenez, the co-owner of lot 38, for an order that resolution 1 of the committee meeting held on 13/9/04 be declared void and the committee be ordered to proceed with the previous resolution of the committee of 10/07/04, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0666-2004

"Kookaburra Park Eco Village" CTS 19671

The applicant, Edgar Jimenez, the co-owner of lot 38, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

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)).

The scheme is a subdivision of 124 lots recorded (initially) under a group title plan of subdivision (now a standard format plan). The regulation module applying to the scheme is the standard module.

This office sought submissions from the committee and all owners in respect of the application. Excepting the committee, which has opposed the application, a submission has been received from persons representing one other lot. In addition, the applicant has replied to the committee’s submission.

More generally, this is the 35th application for dispute resolution made in respect of this scheme since 1998. In my observation, the same names appear repeatedly in applications. Given the extremely low cost and low formality of this jurisdiction, I consider that certain persons in this scheme consider applications to this office as simply another mechanism they can employ against others whom they oppose.

At its core, this dispute is reasonably straightforward. The applicant, a member of the former committee, is seeking to reverse a resolution of the new committee which resolved not to proceed with a resolution carried by the previous committee. The applicant seeks the invalidation of the later resolution of the new committee, and the implementation of the former committee’s resolution to undertake certain works. It is clear that there is much internal body corporate politics involved, however I refuse to consider these aspects.

There is an implication in the applicant’s material that the later committee is not empowered to resolve as it did, and reverse an earlier resolution. Alternatively, there is an implication that in order to do so, the later committee required to provide reasons for resolving contrary to the earlier resolution. Just as an individual can change their mind in respect of an intended course of action (eg. to first purchase a car and then subsequently, to decide not to buy a car) so to a body corporate, including its committee, can reverse an earlier resolution. This ability is specifically provided for in the legislation in relation to general meetings of the body corporate (see section 57 of the standard module) and there is no reason why such position is not also the case in the respect of a resolution of the committee.

Further, I consider the applicant’s own arguments are specifically relevant to the resolution which the applicant now seeks to invalidate. In his grounds, the applicant states –

The applicant is referring to section 37 of the standard module which provides for a notice of opposition to the carrying out of a resolution by the committee. However, this statement is equally apposite to the applicant’s own opposition to the new committee’s subsequent reversal of the earlier committee resolution. Rather than make application to this office, the applicant could have engaged this same procedure which he now alleges was available to others in respect of the earlier committee resolution.

As I indicated previously, this office sought submissions in respect of the application from all owners. The lack of response, as a measure of support for the applicant’s position, was overwhelming. One other owner, or at least, persons associated with one other lot, have written in support of the application. It should be noted that a person associated with that one other lot was in fact the previous chairperson of the committee which took the earlier resolution, and in fact, this person was one of the signatories to the contract the subject of the previous resolution. Whilst these persons are entitled to their view, I suggest that their opposition to the action of the current committee is to be expected.

I have considered all material in the application, submissions and reply and intend to dismiss this application. In the circumstances, I am satisfied generally with the explanation of the dispute provided by the current committee, and consider that this application is generally without substance, and does not warrant further investigation on my part. This application is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kookaburra Park Eco Village [2005] QBCCMCmr 89 (16 February 2005)