South Pacific Plaza [2006] QBCCMCmr 169 (4 April 2006)

Last Updated: 19 December 2006

REFERENCE: 0118-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10922
Name of Scheme:	South Pacific Plaza
Address of Scheme:	157 Old Burleigh Road BROADBEACH QLD 4218

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

Janice Taylor, a Co- owner of lot 67

I hereby order that pursuant to 32B of the Body Corporate and Community Management (Standard Module) Regulation Janice Taylor, a co-owner of lot 67, may attend meetings of the Body Corporate Committee for South Pacific Plaza. I further order, that committee meetings are to be held at a location which can be accessed by the applicant and the location may be within the scheme or may be held at other premises which the applicant may access. I further order, that any cost of hiring a venue for the purpose of conducting committee meetings shall be borne by the body corporate as an administrative expense.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0118-2006

"South Pacific Plaza" CTS 10922

Application

The applicant, Janice Taylor, is a co-owner of lot 67, and has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

(1) Since I have not been banned from the Complete Body Corporate Services building nor
(2) Have I had a Restraining Order against me that does not allow me to attend a Committee Meeting

I ask the Adjudicator:-

(1) to order the Committee to select another venue for its meetings so that I may attend; or
(2) to allow me (to) attend Committee Meetings at 10 Ferry Road, Southport without any obstruction or conditions

In response to the application, an Interim Order was made on 4 April 2006 stating that the applicant had a statutory right to attend the Committee Meeting to be held on 5 April 2006. That order was of an Interim nature, rather than an Order finally determining the matters in dispute, as clarified in the subsequent Supplementary Order.

Following issue of the Interim and supplementary Orders, the application was referred back to the Commissioner for further consideration, and as a result, submissions were sought regarding the request for Final Orders.

Background

As stated in the Interim Order, the applicant is requesting this order because on previous occasions she has been physically prevented from attending committee meetings convened at 10 Ferry Road Southport, a small building owned by Complete Body Corporate Services Pty. Ltd., the Body Corporate Manager for the scheme. Complete Body Corporate Services Pty. Ltd. Is operated by Ms Kim Elliott although her husband Mr. Solomon also occupies part of the building from where he carries out separate business activities.

On 18th January 2006, each lot owner in South Pacific Plaza was sent a notice of Committee Meeting to be held at 10 Ferry Rd. Southport on Wednesday, 1 February 2006, at 2PM.

On that day the applicant faxed a letter to the Body Corporate Manager, in accordance with Section 32B of the Body Corporate and Community Management (Standard Module) Regulation 1997, advising that she would be attending the committee meeting .

However, the applicant states that on 1 February she was prevented from entering the building by Mr. Ian Solomon. It is alleged that Mr. Solomon informed her that she was being refused entry because:

•	she is a friend of a Mr Murphy;
•	her husband "behaved badly" at the 2005 AGM;
•	As he had an interest in the subject property, 10 Ferry St., he could say who may come into the building.

The applicant states that according to property searches undertaken by her, the subject property is owned by Body Corporate services Pty. Ltd. Of which the sole director is Ms. Kim Elliott.

On 4 April 2006 I ordered that Ms. Janice Taylor, a co-owner of lot 67, was entitled to attend a meeting of the Body Corporate Committee for South Pacific Plaza on 5 April 2006 at 10 Ferry Road, Southport. Unfortunately however, the applicant was again refused entry to the building by Mr Solomon. As my jurisdiction as an adjudicator is confined to certain parties, I believe that the principal question for determination is whether I should order the Committee to select another venue for its meetings so that the applicant may attend.

Submissions

Pursuant to section 243 of the Act, submissions were sought from the body corporate committee, body corporate manager and all members of the body corporate in relation to the request for Interim Orders and also for Final Orders.

The Body Corporate Committee alleged that the applicant and her associates "have a dark history of violating the lawful peaceful workings of the Body Corporate" and because of previous disturbances, the Body Corporate has been refused access to other facilities in the past. It further advised that meetings are conducted at 10 Ferry St. Southport at no cost to the Body Corporate and if it is necessary to change the venue of the meeting, the applicant should be responsible for the cost of hiring an alternative venue. Alternatively, it is suggested that the applicant should pay for the cost of licensed security guards to attend the meeting to prevent any disruption by the applicant and her associates.

The body corporate manager made a submission in similar terms, referring to instances where the applicant and her associates have previously been responsible for confrontational and aggressive behaviour and caused disruption to meetings of the body corporate.

On the other hand, numerous individual owners supported the applicant, stating that the applicant is entitled to attend and that alleged disruptive behaviour of "associates " should not be grounds to deny the applicant her statutory right to attend meetings.

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

As I have previously stated, this scheme has a history of disputes and it would appear that the applicant has been associated with a faction which is dissatisfied with the performance of the current body corporate manager and the current committee.

Nevertheless, the Body Corporate and Community Management Act and Body Corporate and Community Management (Standard Module) Regulation contemplate that Bodies Corporate are to be operated in a democratic fashion. While I appreciate that the current committee members may have certain apprehensions regarding the applicant’s presence at committee meetings, I also believe it is important that the committee is accountable to the wider body corporate membership as contemplated by section 32B of the Standard Module which provides as follows :

32B Attendance at committee meetings non members
(1) A person who is not a member of the committee may attend a meeting of the committee if the person is
(a) a lot owner who complies with subsection (2); or
(b) another person who is invited to attend by a majority of the voting members of the committee who are present at the meeting personally or by proxy.
(2) A lot owner who wishes to attend a meeting of the committee under this section must give the secretary written notice of the lot owner’s intention to attend so that the secretary receives the notice not later than 24 hours before the meeting starts.
(3) A person who attends a committee meeting under this section must not be present for an item of business about a following matter considered at the meeting if the committee decides that the person must not be present for the item
(a) a breach of the by-laws for the community titles scheme;
(b) starting a proceeding, if the decision to start the proceeding is not a decision on a restricted issue for the committee;
(c) a proceeding against the body corporate;
(d) a dispute between the body corporate and
(i) the owner or occupier of a lot included in the scheme; or
(ii) a body corporate manager; or
(iii) a caretaking service contractor.
(4) Also, the person must not be present for
(a) a discussion of, or vote taken by, the committee about whether the person may be present for an item of business mentioned in subsection (3); or
(b) a vote taken by the committee on the item of business.
(5) The person
(a) subject to subsections (3) and (4), may observe the meeting; and
(b) may speak to the committee only if invited to speak by the committee.
(6) An invitation to speak to the committee may be revoked by the committee at any time.
(7) The committee may direct the person to leave the meeting if the person does not comply with subsection (5)(b).
(8) The person must comply with a direction given to the person under subsection (7).

Clearly, a lot owner who is not a committee member may attend a committee meeting provided the person gives notice as required by subsection 2. It is also clear that such a person may observe the meeting and may speak to the committee only if invited to speak by the committee. Further, the committee may direct the person to leave the meeting if the person does not comply with subsection (5)(b).

Notwithstanding that the applicant may be associated with a faction that has certain grievances with the current committee and the body corporate manager, I have not seen any evidence that the applicant has previously disrupted committee meetings. Accordingly, I propose to make an order declaring that the applicant may attend Committee Meetings in accordance with section 32B. Further, given the unwillingness of the owner and occupiers of premises located at 10 Ferry Rd. Southport to allow the applicant to attend meetings at those premises I propose to order that committee meetings are to be held at a location which can be accessed by the applicant. Such a location may be within the scheme or may be held at other premises which the applicant may access. Further, any cost of venue hire should be borne by the body corporate as an administrative expense.