Kensington Gardens Retirement Village [2006] QBCCMCmr 248 (18 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0257-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30198
Name of Scheme:	Kensington Gardens Retirement Village
Address of Scheme:	45 Glen Kyle Drive BUDERIM QLD 4556

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

Michael Joseph Kehoe, the co-owner of lot 62

I hereby order that the applicant, Michael Joseph Kehoe, shall not attend the body corporate committee meeting to be held on 18 May 2006. I further order that if the applicant, Michael Joseph Kehoe, wishes to attend future committee meetings in his capacity as a lot owner he must, for each meeting, give the requisite notice under section 32(B)(2) of the Standard Module to the secretary after notice of the meeting is given by the secretary under section 28 of the Standard Module. I further order that the application for an order that the body corporate committee issue an apology to the applicant for the reference to the applicant’s "inappropriate behaviour" in the minutes of the committee meeting held on 17 March 2006, is dismissed. I further order that a copy of this order and the accompanying Statement of Reasons for Decision shall be circulated by the secretary to all owners within 1 month.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0257-2006

"Kensington Gardens Retirement Village" CTS 30198

ORDERS SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1) I request that the committee lift the ban on my attendance at committee meetings
2) That all future committee meetings other than for an emergency are duly notified to all residents and decisions of the committee are not acted on until the statutory 7 days after the distribution of minutes has passed.
3) Further I request that a full written apology for the defamatory slanderous and untruthful remarks contained in the minutes of the "Flying Meeting" sic; be circulated to all residents of Kensington Gardens Retirement Village. This apology to be signed by all members of the committee except the treasurer Mr Hinz Ross.

The applicant has also sought an interim order of an adjudicator under the Act as follows:

1) I request that the ban on me attending committee meetings be set aside pending a full investigation of this matter.

JURISDICTION

The application evidences a dispute between an owner 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

(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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

BACKGROUND

The applicant, who is not a member of the committee, wishes to attend body corporate committee meetings in his capacity as an owner of a lot in the scheme. The body corporate committee has decided that it will not permit him to do so. This decision has been made in light of the committee’s view that the applicant has exhibited inappropriate behaviour at meetings over a number of years, but in particular at a committee meeting held on 17 February 2006.

The body corporate committee was invited to respond to the application. The usual requirement is for a single submission from the committee. In this instance submissions were received from six members of the committee, however, each committee member has provided a personal perspective on the issues.

The applicant obtained copies of all submissions, and exercised his right of reply.

DETERMINATION

The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). Section 32B provides:

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).

The applicant attended the committee meeting held on 17 February 2006, after having initially been advised that as he had not given the requisite notice (24 hours) he could not attend.

Following that meeting, the applicant gave notice to the committee of his intention to attend all future committee meetings. The committee decided to refuse permission for him to attend future committee meetings because he had behaved inappropriately at the meeting.

The applicant denies that he behaved inappropriately at the February 2006 meeting. In particular, he denies the claim of five committee members (including the chairperson) that he invited the chairperson to "step outside" to settle certain issues at the close of the meeting. The applicant claims that the offer to "step outside" was made to him by the chairperson, and that the committee members are colluding in portraying him in this light.

I am unable to test this conflict in the evidence. The Act does not provide for formal hearings to determine dispute applications. An adjudicator cannot take oral evidence under oath and witnesses cannot be cross-examined, which is the usual method by which a decision maker would resolve such a conflict.

Therefore, I make no finding in relation to the alleged incident between the applicant and the chairperson.

However, there are other allegations made against the applicant in the submissions, which the applicant has not challenged in his reply.

Mr Steenson, who is a member of the present committee, cited a number of examples of behaviour exhibited by the applicant at various meetings since 2003. On one occasion the applicant is stated to have been loud and disruptive throughout a meeting held on 10 August 2003, such that the meeting "finished in a complete shambles".

During the annual general meeting held on 14 July 2004, Mr Steenson stated that the applicant turned off the microphone every time a speaker aired views with which the applicant did not agree. At the end of that same meeting, the applicant is stated to have strewn meeting papers all over the floor when the results of the committee election were announced. The applicant is also stated to have shouted that he "had the last laugh" because he had just signed up the gardener for a further five years. (This was a contentious issue, which subsequently resulted in protracted involvement of solicitors). The applicant is then stated to have left the meeting area, whilst making "an unpleasant gesture with his hand".

Mr Steenson was also present at the committee meeting on 17 February 2006, but left at the conclusion of the meeting and did not witness the exchange between the applicant and the chairperson. However, Mr Steenson stated that the applicant told one of the committee members to mind her own business when she enquired why the applicant wanted to install a second water tank. The applicant confirmed that he had made this remark to the committee member. The installation of the second water tank was an item on the agenda of the committee meeting, as committee approval was required for such an installation. Mr Steenson expressed the view that the applicant’s statement to the committee member was "very inappropriate".

In their submissions, other committee members have described the applicant as dominating, autocratic, dictatorial, overbearing, intimidating and threatening. The sentiments of the committee would appear to be encapsulated in the view of one member, who stated that members of the committee have been elected in a democratic process and simply wish to carry out their duties "in an atmosphere of peace and goodwill" without being subjected to the applicant’s continual harassment and constant criticism, which they find detrimental to their health and well being.

The body corporate committee is the administrative arm of the body corporate, and as such is charged with the responsibility of ensuring that body corporate business is conducted in an orderly and timely fashion. Whilst the regulations allow for owners to be present at committee meetings, there are strict guidelines governing their presence.

After the committee meeting held on 17 February 2006, the applicant wrote to the committee advising them that he intended to attend all future committee meetings. This was no doubt done to ensure that he had complied with the requirement to give at least 24 hours’ notice of his intention to attend a meeting. However, in my view it was not the intention of the legislature that owners should be able to give a blanket notice in this way, because there may well be meetings at which the presence of an owner would not be permitted by the committee (see sections 32B(3) and (4) of the Standard Module).

I consider that an owner must give notice in respect of each meeting that they wish to attend, after the notice of committee meeting has been given, so that proper consideration can be given to the specific circumstances of that meeting, and whether the items on the agenda of the meeting preclude the presence of the owner.

There is a committee meeting being held on 18 May 2006, at which the budget for the forthcoming financial year is to be discussed, before being submitted to owners for their approval at the annual general meeting. Given the unchallenged episodes cited above I am not satisfied that the committee’s decision to refuse permission for the applicant to attend this meeting is unreasonable. If the applicant wanted to have matters considered at the meeting he has had ample opportunity to write to the committee placing his views before them. Furthermore, the applicant will have the opportunity to vote on the budget motions at the annual general meeting.

I also do not propose to order that the committee offer an apology to the applicant. On the uncontested evidence before me, the applicant’s behaviour was quite accurately described as "inappropriate" in the minutes of the meeting held on 17 March 2006.

If the applicant wishes to attend a future committee meeting, he must give the requisite notice under section 32(B)(2) of the Standard Module to the committee after the notice of committee meeting is circulated to owners under section 28 of the Standard Module. If the committee has good reason to prevent the applicant from attending the meeting then it must advise him promptly.

The applicant should also take particular note of sections 32(B)(5), (6) and (7) of the Standard Module. Given the applicant’s uncontested history of disrupting meetings, he should be aware that if similar behaviour should occur in the future at a committee meeting at which he is an observer, the committee would be within its rights to direct him to leave the meeting, and it could well seek an order of this office preventing his attendance at future meetings.

The committee should also ensure that any voting outside committee meetings adheres to the requirements of section 35 of the Standard Module, which provides as follows:

35 Voting outside committee meetings

(1) A resolution on a motion before the committee is a valid

resolution of the committee, even though the motion is not

passed at a meeting of the committee called and conducted

under division 7, if--

(a) notice of the motion is given to all committee members

or, in an emergency, as many members as it is

practicable to contact; and

(b) a majority of all voting members of the committee

entitled to vote on the motion agrees to the motion.

(2) The notice must be given in writing, and the members’

agreement to the motion must be given in writing but, in an

emergency, the notice may be given, and the member’s

agreement expressed, orally or by another appropriate form of

communication.

(3) Advice of the motion must be given, at the time notice of the

motion is given or, in an emergency, as soon as reasonably

practicable, to each lot owner, other than a lot owner who--

(a) has instructed the secretary that the lot owner does not

wish to be given advice of committee meetings; and

(b) has not withdrawn the instruction.

(4) The notice and advice of the motion may be given by--

(a) the secretary; or

(b) another member of the committee who is authorised by

a majority of voting members of the committee to give

the notice and advice.

(5) For the operation of sections 34(1) and (2), 36(2) to (4) and

37, the committee, in dealing with a resolution under this

section, is taken to deal with the resolution at a meeting of the

committee.

(6) A motion voted on under this section must be confirmed at the

next meeting of the committee held after the motion is voted

on.

Finally the committee should note the provisions of sections 36 and 37 of the Standard Module, which are as follows:

36 Minutes and other records of committee

(1) The committee must ensure--

(a) full and accurate minutes of its meetings are taken; and

(b) a full and accurate record is kept of each motion voted

on other than at a meeting.

(2) The secretary must give a copy of the minutes of each meeting

and of any resolution voted on other than at a meeting to the

following persons--

(a) each member of the committee;

(b) each lot owner who is not a member of the committee.

(3) Subsection (2)(b) does not apply to a lot owner who--

(a) has given the secretary a written notice instructing the

secretary that the lot owner does not wish to be given

copies of the minutes of committee meetings and

resolutions voted on other than at meetings; and

(b) has not withdrawn the instruction.

(4) The copy must be given to the person--

(a) within 21 days after--

(i) for a copy of minutes of a meeting--the holding of

the meeting; or

(ii) for a copy of a resolution voted on other than at a

meeting--the passing of the resolution; and

(b) in 1 of the following ways--

(i) by handing it to the person;

(ii) by sending it by mail;

(iii) by sending it by facsimile;

(iv) by sending it electronically.

(5) In this section--

full and accurate minutes, of a meeting, means minutes

including each of the following--

(a) the date, time and place of the meeting;

(b) the names of persons present and details of the capacity

in which they attended the meeting;

(c) details of proxies tabled;

(d) the words of each question decided;

(e) the number of votes for and against each question

decided;

(f) details of correspondence, reports, notices or other

documents tabled;

(g) the time the meeting closed;

(h) details of the next scheduled meeting;

(i) the secretary’s name and contact address.

full and accurate record, of a motion voted on other than at a

meeting, means a record including each of the following--

(a) the date notice of the motion was given;

(b) the names of the committee members to whom notice

was given;

(c) the words of the motion voted on;

(d) the names of the committee members who voted on the

motion;

(e) the number of votes for and against the motion.

37 Carrying out resolutions of committee meetings

(1) A notice opposing the carrying out of a resolution of the

committee (a notice of opposition), signed by or for the

owners of at least one-half of the lots included in the scheme,

may be given to the secretary.

(2) A notice of opposition must be given to the secretary within 7

days (the required period) after the secretary gives a copy of

the minutes containing the resolution or, for a resolution

passed other than at a meeting, a copy of the resolution, to

each owner of a lot included in the scheme as required under

section 36.

(3) The committee may carry out a resolution only if--

(a) no notice of opposition is received by the secretary

within the required period; or

(b) the resolution is necessary to deal with an emergency,

and--

(i) the amount required to put the resolution into

effect is within the relevant limit for committee

spending for the scheme; or

(ii) an adjudicator acting under the dispute resolution

provisions authorises the committee to carry out

the resolution; or

(c) the resolution is ratified by ordinary resolution of the

body corporate.

(4) In a proceeding involving a challenge to the right of the

committee to carry out a resolution, or a body corporate

manager to carry out a decision made in the exercise of a

power of an executive member of the committee under an

authorisation given by the body corporate, the burden of

proving that action required to be taken under section 36(2)

and (4) was in fact taken lies on the person asserting the right

of the committee or body corporate manager to carry out the

resolution or the decision.

(5) Subsections (1) to (4) do not apply to a resolution authorising

a committee member to carry out a stated function of the body

corporate if--

(a) the cost of acting under the resolution, including the

amount of any commitment incurred, is not more than

the greater of--

(i) $200; or

(ii) $5 multiplied by the number of lots included in the

scheme; or

(b) the function involves a decision of a routine,

administrative nature.

These orders finally dispose of the application.