Hemmant Village [2006] QBCCMCmr 115 (13 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0854-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22717
Name of Scheme:	Hemmant Village
Address of Scheme:	19 Doughboy Parade HEMMANT QLD 4174

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

Peter Griep, director of Nadco Pty. Ltd. the Owner of lot 42, 63, 65, & 66

I hereby order that the application for Orders 1. To declare the body corporate committee dysfunctional and to call an election of a new committee as soon as possible, and. 2. To declare a committee meeting of 11 November 2005 invalid. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0854-2005

"Hemmant Village" CTS 22717

The Scheme

"Hemmant Village" community titles scheme is registered as a standard format plan and comprises 82 residential lots operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module).

The Application

The applicant is the sole director of Nadco Pty. Ltd., the Owner of lot 42, 63, 65, & 66 and is seeking the following orders against the body corporate:

1. To declare the body corporate committee dysfunctional and to call an election of a new committee as soon as possible.

2. To declare a committee meeting of 11 November 2005 invalid.

Background

As the parties to this dispute may be aware, the Applicant previously sought the following Interim Order:

1. To declare a committee meeting of 11 November 2005 invalid and to put all resolutions of the meeting on hold.

I declined to make an interim order and on 5 January 2006, made the following findings based on the evidence supplied:

Although the applicant claims that proper notice was not given, the committee submits that notices of the 11 November meeting were mailed to committee members within the required timeframe and a quorum was present for the purposes of holding the meeting. The committee also advises that a proxy vote was received from the applicant but the person to whom the proxy was allocated was not present at the meeting.

The applicant claims that at a committee meeting held on 15 July 2005, a motion was carried to hold the next meeting on 4 November 2005. However at an emergency meeting of 5 August 2005, the date for the next committee meeting was recorded in minutes as 4 October 2005.
Strata Solutions later confirmed that the meeting was scheduled for 4 November, but subsequently, the meeting date was changed to 11 November without notifying the applicant and another committee member.

Submissions

Although all parties were invited to provide further material that they might consider relevant to the dispute, submissions made regarding the application for final orders, were in effect, a restatement of submissions previously made.

At the interim stage, the body corporate committee made a number of submissions including the following submission:
The notice of meeting and agenda for the 11 November meeting were mailed to committee members within the required timeframe. A proxy vote was received from the applicant but the person to whom the proxy was allocated was not present at the meeting;

Jurisdiction

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)).

Determination

Although the applicant claims that proper notice was not given, the committee submits that notices of the 11 November meeting were mailed to committee members within the required timeframe and a quorum was present for the purposes of holding the meeting. Although the applicant had the opportunity to respond to the committee’s submission, no response has been received to date.
As an adjudicator I do not have powers to require persons to give evidence upon oath, or otherwise test the evidence. Accordingly I do not propose to make any orders regarding the validity of the subject committee meeting.

I am advised that an AGM has been scheduled for March this year at which a new committee is to be elected. Consequently there is no need for me to further consider the applicant’s request that the committee be replaced.