Varsity Shores [2006] QBCCMCmr 387 (20 July 2006)

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

I hereby order:

1. Stewart Silver King and Burns is appointed as administrator for the purposes of reconvening the annual general meeting which was abandoned on 26 June 2006. For the sake of clarity, it is ordered that the agenda and terms of the motions for the reconvened meeting are to be the same as the abandoned meeting, with the only changes allowed being the changing of procedural dates and contract dates.
2. The reconvened meeting is to occur not less than 3 weeks and two days from the date of the notice of meeting, but not more than 5 weeks from the date of this order.
3. Stewart Silver King and Burns may bill the Body Corporate $60 plus GST for repairing the annual general meeting agenda and associated documents and $120 plus GST for completing and mailing the minutes. Costs and outlays associated with this are also to be met by the Body Corporate.
4. Stewart Silver King and Burns may bill the Body Corporate at $120 an hour plus GST for attendance at, and travel to, the reconvened meeting.
5. The only enclosures Stewart Silver King and Burns may include in relation to the motion with alternatives for the engagement of a body corporate manager are to be the explanatory note (of not more than 300 words) from the original submitter and each of the provider’s standard form of agreement (addressing those matters required under section 76 of the accommodation Module).
6. Logan Irwin is appointed as the returning officer at the cost of $100 per hour during business hours or $150 per hour after hours. Mr Irwin is to bill the Body Corporate for both his services and the cost of prepaid envelopes.
7. Mr Irwin will immediately make at least 122 prepaid envelopes available to Stewart Silver King and Burns.
8. Mr Irwin will receive the voting papers and ballots directly to the post office box "PO Box 7144, Gold Coast Mail Centre 9726".

9. Mr Irwin is required to attend at the reconvened annual general meeting and Stewart Silver King and Burns is to consult him regarding the date to be chosen.
10. Delivery of the unopened voting envelopes to the chairperson is not to occur until after the annual general meeting has commenced.
11. The voting envelopes are not to be opened until delivered by Mr Irwin to the chairperson.
12. Mr Irwin is to be present for and participate in the count of all voting papers and ballots.
13. Stewart Silver King and Burns is excused from complying with any demands made for the return of books and records made by the committee within 5 weeks of this orders or before the reconvened annual general meeting (whichever is earlier) unless ordered otherwise by this office.
14. The decision making of the committee is restricted to the following matters until the annual general meeting is reconvened:

• the authorisation of routine payment of accounts for contracts or services which are already in place such as utility services and maintenance occurring at less than yearly intervals. Each of these individual payments is to be authorised by a minute of the committee and directed to Stewart Silver King and Burns to effect payment;
• authorising Stewart Silver King and Burns to provide disclosure statements and search responses and receive the legislated fee for the service.

15. Stewart Silver King and Burns is to collate the time spent on attending to the above routine requests and bill the Body Corporate for services rendered on a monthly basis at the rate of $120 per hour plus GST.
16. Stewart Silver King and Burns is to distribute a copy of this decision to all owners with the documentation for the reconvened annual general meeting and to bill the outlays and additional labour costs associated with this to the Body Corporate at $120 per hour plus GST.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0482-2006

"Varsity Shores" CTS 30197

Purpose of order

The purpose of this order is to replace an earlier order made 20 July 2006, which omitted to describe the fee payable to Stewart Silver King and Burns for attendance and travel to the reconvened meeting, as being at the hourly rate of $120 per hour plus GST.

Application

Ian MacMaster, the Owner(s) of lot 15 (the applicant) has sought orders:

Jurisdiction

Varsity Shores CTS 30197 is a 122 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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

(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 applicant states that the annual general meeting of 26 June 2006 was abandoned by the current committee because the voting papers were reported stolen by the current secretary. Minutes to this effect were provided.

The applicant states the current secretary and committee had requested that the voting papers be sent to the secretary’s mailbox despite protests from other lot owners.

The applicant advises that a significant number of lot owners are unhappy with the decision making of the current committee and wish to replace the committee by lawful means. He states they are particularly unhappy with the financial dealings of the current committee and do not wish them to exercise financial power in the interim. He states that during the recent aborted meeting, the secretary would not answer any questions as to the circumstances of the break in or whether anything else of value was stolen.

He states the application is an attempt to ensure the next meeting is fair and equitable. The applicant includes signatures from lots 1, 2, 53, 58, 100, 101, 105 and 106 in support of his application.

Before seeking submissions, the applicant was requested to locate and obtain the agreement and terms of an independent returning officer. He was also asked to see if the current body corporate manager, Stewart Silver King and Burns would be willing to administer the upcoming meeting and on what terms. The terms of these consents follow.

During the course of these enquires, Stewart Silver King and Burns made this office aware of two developments:

Teleconference

The receipt of the information indicated that it was highly likely there were now three groups of people seeking the same outcome. In order to expedite submissions, an urgent teleconference was convened on 19 July 2006 attended by one representative from each group. In attendance were:

It was agreed by all parties that the meeting needed to be reconvened as soon as possible. The applicant disclosed that the returning officer he received consent from, was referred by Stewart Silver King and Burns. The mechanics to ensure impartiality, achievement of quorum and interim administration were the burning issues. The matters giving rise to the dispute were not discussed as they are not relevant to the orders sought. I am satisfied that the notice of the teleconference given to the parties was sufficient given the purely procedural nature of the discussion. Strategies to address those procedural concerns will be incorporated into my orders.

It is clear that the annual general meeting needs to be reconvened at the earliest possible time and I will make an order to this effect.

While Archers Body Corporate Management had quoted an hourly rate to administer the scheme of $121 an hour including GST and Stewart Silver King and Burns quoted $132 ($120 an hour plus GST), I am of the view that there are considerable efficiencies to be gained by allowing Stewart Silver King and Burns to administer the calling of the next meeting. I will make an order to this effect. All costs are to be met by the Body Corporate.

So that Stewart Silver King and Burns can undertake this task efficiently, I will make orders that they need not comply with any demand made for return of books and records of the body corporate, which are made by the committee within 5 weeks of this order or before the reconvened annual general meeting (whichever is earlier), unless ordered otherwise by this office.

I will make orders that material distributed by Stewart Silver King and Burns in relation to the items arising at the annual general meeting is not to include material promoting their services. In this regard the only enclosures relating to the body corporate manager which may be included in the annual general meeting materials are the submitter’s explanatory notes (not longer than 300 words) and each provider’s standard form of agreement (addressing those matters required under Section 76 of the Accommodation Module).

I have made enquiry into the suitability of Mr Irwin as the returning officer, and am satisfied that he is well qualified and impartial.

I will make orders appointing Logan Irwin of Independent Strata Consultants as the returning officer for all voting or ballot papers associated with all items on the agenda for the reconvened meeting. All voting papers and ballots are to be sent directly to his collection address. Payment will be at the rate of $100 per hour during business hours and $150 an hour outside business hours (no GST). The cost of prepaid envelopes will also be met. All costs associated with the returning officer are to be met by the body corporate.

I will make orders that the decision making of the committee will be restricted until the annual general meeting is reconvened. Their decision making will be limited to:

Stewart Silver King and Burns should collate the time spent on attending to routine requests and bill the Body Corporate for services rendered on a monthly basis at the rate of $120 an hour before GST.

Number of Scheme:	30197
Name of Scheme:	Varsity Shores
Address of Scheme:	4 University Drive ROBINA QLD 4226

•	for leave to call the annual general meeting out of time;
•	for Archers Body Corporate Management to administer the calling of the meeting;
•	for Archers Body Corporate Management to operate the bank accounts in the interim;
•	to demand the books from Stewart Silver King and Burns for return within 7 days;
•	Archers Body Corporate Management would be paid at $121 an hour including GST.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Varsity Shores [2006] QBCCMCmr 387 (20 July 2006)