Il Villaggio [2006] QBCCMCmr 336 (23 June 2006)

Last Updated: 19 December 2006

REFERENCE: 0439-2006A

FINAL ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28518
Name of Scheme:	Il Villaggio
Address of Scheme:	24 Radan Street, SUNNYBANK HILLS QLD 4109

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

T Leigh and V Ivett, the Owner(s) of lots 24 and 31

I hereby order that the application for an order that the Body Corporate hold a general meeting within 30 days of the date of this order is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0439-2006A

"Il Villaggio" CTS 28518

The Application

The applicants, Toni Leigh and Val Ivett, are the owner and co-owner of lots 31 and 24 respectively, in the Il Villagio Community Titles Scheme (Ill Villagio). Il Villagio is a 40-lot scheme whose regulation module is the Accommodation Module (Body Corporate and Community Management (Accommodation Module) Regulation 1997).

The applicants are concerned with the financial health of the Body Corporate; in particular, they are concerned that existing funds in the administrative fund are insufficient for projected expenditure. This application runs parallel and builds on an application that was lodged by the applicants in February 2006. The applicants have made a number of requests to the managers of Il Villagio – TEYS Strata [Brisbane] Pty Ltd – relevant to their concerns.

Section 276(1) of the Body Corporate and Community Management Act 1997 (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)).

My decision

This decision is supplementary to my interim order decision of 14 June 2006 – Reference 0439A-2006. In that matter I made a decision on three orders that were being sought by the applicants. The orders being sought were:

1. A general meeting of the Body Corporate be held within 30 days of the date of this order pending a final determination that the financial position necessitates the calling of a general meeting.
2. The Body Corporate provide the applicants requested copies of body corporate records within 7 days of the date of this order.
3. The Body Corporate provide members with current financial records to include projected cash flows and expenditure commitments for the next 6 months within 14 days of the date of this order.

Subsequent to the release of this decision, the applicants have clarified that Orders 2 and 3 were the interim orders sought and that Order 1 – the request for a calling of a general meeting of the Body Corporate - was a final order and not an interim order.

I declined to grant Order 1 as an interim order. The reason for my decline was that Order 1 was contingent on there being material ‘discovered’ through the actioning of Orders 2 & 3. That is, had the Body Corporate records and the projected cash flows and expenditure commitments documents supported the applicants’ concerns that the Body Corporate finances have been poorly managed, the applicants would then require an order to be made calling a general meeting.

However, I declined to grant the ‘interim Order 2’ on the basis that predominantly, the applicants were seeking that the Body Corporate Managers answer questions put to them by the applicants rather than provide them with access to its records. Moreover, it strongly appeared that where the applicants were seeking actual documents, the Managers had provided them with access to these documents.

I also considered that Order 2 was imprecise in its wording and finally, that the applicants were seeking an expedited final order rather than an interim order.

I declined to grant the interim Order 3 on the basis that there was no information that a document detailing the projected cash flows and expenditure commitments for the next 6 months was in existence and I considered that if it did not currently exist, the applicant’s timeframe of 14 days in which to produce it was unreasonable. I similarly considered that this too was a request for an expedited final order rather than an interim order.

As the requests for interim Orders 2 and 3 were not granted, the requirement for Order 1 was not invoked and I declined to grant an order that a general meeting be called accordingly.

My views on the orders sought by the applicants are not affected by the subsequent information that Order 1 is being sought as a final order. The applicants still do not have any information supporting the need to call a general meeting. Even if the applicants were to have information the applicants have a legislated capacity to request a general meeting be convened outside of an adjudicator’s order.

Section 59(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 states:

59 Requirement for requested extraordinary general meeting [SM,s 61]

(1) An extraordinary general meeting (a "requested extraordinary general meeting") of the body corporate must be called if a notice asking for an extraordinary general meeting to consider and decide motions proposed in the notice is--
(a) signed by or for the owners of at least 25% of all the lots included in the scheme; and

(b) given to the secretary or, in the secretary’s absence, the chairperson or, if the committee has not yet been chosen, given to the original owner.

It could be presumed that on an issue as significant as the financial health of the Body Corporate, that the applicants could find eight other owners at Il Villagio who would support the request for an Extra-ordinary General Meeting.

For all the above reasons, I decline to grant the final order sought by the applicants.