Torelliana [2006] QBCCMCmr 179 (10 April 2006)

Last Updated: 19 December 2006

REFERENCE: 0803-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22061
Name of Scheme:	Torelliana
Address of Scheme:	70 Bardon Avenue MIAMI QLD 4220

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

Maureen Pearl Stockdale, the co-owner of lot 15

I hereby order that the application by Maureen Pearl Stockdale, the co-owner of lot 15, for orders that : 1. The 11 August 2005 Torelliana body corporate AGM be declared void for irregularity and that an administrator be appointed to perform the obligations of the committee; 2. The Torelliana body corporate annual accounts be audited and that all written contracts with our insurer CGU and service contractor Miami Recreational Facilities Pty Ltd be reviewed, is dismissed under section 270(1)(c) of the Act for the reason that the application is possibly vexatious, is misconceived and without substance.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0803-2005

"Torelliana" CTS 22061

The applicant, Maureen Pearl Stockdale, the co-owner of lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

We request the following order that:

1.	The 11 August 2005 Torelliana body corporate AGM be declared void for irregularity and that an administrator be appointed to perform the obligations of the committee.
2.	The Torelliana body corporate annual accounts be audited and that all written contracts with our insurer CGU and service contractor Miami Recreational Facilities Pty Ltd be reviewed.

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)).

The scheme is a subdivision of 30 lots recorded under a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module. By way of background, it seems that this scheme is part of a retirement village known as Miami Village. Parties should note that this office does not handle retirement village related disputes. There is a separate tribunal established for such disputes.

This is the third application made by either Mr or Mrs Stockdale in the last 3 years. The previous two were 529 of 2004 and 611 of 2005. Both applications were dismissed. I have reviewed those determinations in the context of considering this application.

It is clear from the application that the applicants, and one other owner, are dissatisfied with the current management, both body corporate committee level and scheme level (the village management), and in the case of the body corporate, seek the appointment of an administrator and an audit of accounts, and in the case of the scheme, seek a review of "all written contracts". This body corporate does not choose to engage a body corporate manager. By this application, the applicants seek to have the 2005 AGM declared void, and to have an administrator appointed to perform the obligations of the committee. It is clear from submissions that the existing committee has the enthusiastic support of a significant majority of owners.

I intend to dismiss this application under section 270(1)(c) of the Act, which provides:

(1) The adjudicator may make an order dismissing the application if-- ...
(c) it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; or ...

Relevant to the dismissal of an application under section 270(1)(c) are the provisions of subsections 3 and 4, quote:

(3) If the adjudicator makes an order under subsection (1)(c), the adjudicator--
(a) may order costs against the applicant to compensate the person against whom the application was made for loss resulting from the application; and
Example of loss for paragraph (a)--
Legal expenses reasonably incurred by the person in relation to the application.
(b) in ordering the costs, may have regard to previous applications made by the applicant.
(4) The amount of costs ordered under subsection (3) must not be more than $2 000.

I do not intend to consider the applicants grounds in any detail. Whilst I do acknowledge that the applicants have raised a small number of what I consider minor irregularities, none of these irregularities, even in combination, are sufficient to satisfy me that this committee / body corporate are operating in such a way as to justify the appointment of any administrator.

For example, the applicant complains that a secret ballot was not held for committee positions. The applicant’s husband and one other owner sympathetic to the applicant’s views were nominated for committee positions. The vote was so overwhelmingly against these two nominees that it does not matter what method of voting was employed, the outcome would not have changed. Further, the applicant has not alleged anything that would suggest the voting outcome was not reflective of owners wishes. Further, some of the applicant’s allegations have no legal basis. For example, ground 3 dealing with section 94A(3); the applicant has completely misunderstood the intent of section 94A based on the statements made in the application. What does the applicant intend by the expression, "voting from the floor for financial motions".

In the appeal decision, Wei-Xin Chen V. Body Corporate for Wishart Village (No. 4080 of 2000), Justice Boulton of the District Court stated:

The very detailed provisions of the standard module regulation ... 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 instances of committees where actions are taken bona fide. Mr Meek said as much in his reasons ...

I reiterate, the objections raised by the applicant are minor, and I am satisfied that the committee has made a bona fide attempt to comply substantially with the requirements of the legislation. I am not prepared to work through each of the applicant’s several objections and to point out the minor nature of the issue, or even to explain the full and correct position. In the circumstances, I am satisfied that this third application by the applicant, or her husband contains aspects which warrant its dismissal, without full investigation, under section 270(1)(c). I have ordered accordingly.

I do take objection to the writings of one owner in submissions. This owner is Katherine Elizabeth Page. This owner is the owner supportive of the applicant’s position. Ms Page’s submission contains statements which I suggest show a fundamental misunderstanding of aspects of which she complains. For example, the following:

An unbiased independent review of Torelliana manager is sorely needed to bring the body corporate process and procedures up to date and in alignment with the BCCM Act and regulations. A review that such also rightly include a complete review contributions schedule lot entitlement. Which, under the BCCM Act, the standard module states clearly that lot entitlements should be equal unless there are fair and reasonable reasons for them not to be equal. The Torelliana Body Corporate management has never presented any form of documentation or justification to support unequal lot entitlement charges. This is yet another clear example of blatant disregard of owners rites (sic), poor management and deliberate disregard of the BCCM Act.

For Ms Page’s benefit, the body corporate or its management have nothing to do with the original preparation of the lot entitlements schedules applying to bodies corporate. Rather these documents are prepared by the original developer and lodged at the time of registration of the plan to create the scheme. In the circumstances, Ms Page’s accusations against "management" of blatant disregard of owners rites (sic), poor management and deliberate disregard of the BCCM Act are completely without basis or foundation. It is misinformed, and confirms the lack of substance attaching too much of Ms Page’s allegations.